In accordance with the Law of the Russian Federation "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" (hereinafter referred to as the Law on objects of cultural heritage, the Law), all archaeological finds are referred to as objects of archaeological heritage. According to the Law, archaeological heritage objects include traces of human existence partially or completely hidden in the ground or under water, including all movable objects related to them, the main or one of the main sources of information about which are archaeological excavations or finds.

Thus, objects of archaeological heritage can be both immovable and movable. In the vast majority of cases, archaeological finds (movable objects) are discovered during excavations of immovable archaeological sites.

The source of the discovery of such objects is "the work on the identification and study of objects of archaeological heritage (the so-called archaeological fieldwork)". These works in accordance with paragraph 8 of Art. 45 of the Law on Cultural Heritage Objects are carried out on the basis of a permit (open sheet) issued for a period of not more than one year in the manner established by the Government of the Russian Federation for the right to carry out the relevant work. Objects discovered in this way in accordance with Art. 4 of the same Law refer to objects of cultural heritage of federal significance and can only be in state ownership. In this regard, individuals and legal entities that carried out archaeological field work, within three years from the date of completion of the work, are obliged to transfer all discovered cultural values ​​(including anthropogenic, anthropological, paleozoological, paleobotanical and other objects of historical and cultural value) for permanent storage to the state part of the Museum Fund of the Russian Federation.

We have not been able to find in the Russian legislation any other significant provisions regulating the legal regime of archaeological sites, in addition to the above norms of the Law on Cultural Heritage Objects. Thus, it is on the basis of the above norms that it is necessary to determine what the essence of these objects is, what is the civil law nature of the archaeological find.

The value of archaeological finds is usually very specific, scientific, and not always property in nature. For example, the remains of people and animals, or, from a philistine point of view, "spoiled", "substandard" objects can be attributed to archaeological finds. Archaeological excavations are purposeful activities to discover relevant items.

Treasure, find, abandoned things are special varieties of ownerless things. We believe that archaeological finds are a specific type of ownerless things not reflected in the Civil Code of the Russian Federation. According to Art. 225 of the Civil Code of the Russian Federation, an ownerless thing is a thing that does not have an owner or the owner of which is unknown, or a thing for which the owner has renounced the right of ownership. The right of ownership to ownerless things may be acquired by virtue of acquisitive prescription, unless this is excluded by the rules of the Civil Code of the Russian Federation on specific types of ownerless things. The right of ownership of archaeological finds cannot be acquired by virtue of acquisitive prescription. Special legislation establishes the presumption of state ownership of discovered archaeological objects.

It seems that the discovery of valuable archaeological sites as a result of exploration and excavation is one of the ways to acquire ownership of archaeological heritage sites. The literature indicated that, according to the wording of Art. 218 of the Civil Code of the Russian Federation, the grounds for acquiring property rights indicated in it are exhaustive, although they do not cover all possible grounds for acquiring property rights. Such a shortcoming would be easily avoided if Art. 218 of the Civil Code of the Russian Federation would be supplemented with an indication that, in addition to the grounds listed in it, other ways of acquiring property rights are possible.

The method we are considering of acquiring ownership of cultural property is very specific. Firstly, only qualified persons who have received permission for this in the manner prescribed by law are entitled to carry out the relevant work to search for these objects. Secondly, in relation to all these objects, special legislation establishes the presumption of state ownership. Thirdly, these items are always recognized as objects of cultural heritage of the peoples of the Russian Federation of exclusively federal significance.

Due to the fact that the mechanism of such a method of acquiring property rights as archaeological excavations is not disclosed in detail in the legislation, many questions arise in practice.

Firstly, from the current legislation, in our opinion, it is very difficult to understand whether the “monopoly” of the state has been established in Russia to carry out work to search for archaeological objects. The Law on Cultural Heritage Objects contains vague wording. As mentioned above, it only says that all archaeological work can be carried out on the basis of a permit (Open List) and about certain "individuals and legal entities who carried out archaeological field work." Thus, from the content of the provisions of the Law, only a ban on carrying out relevant work without their “authorization” by the state clearly follows. The Instruction to the Open List for the right to carry out archaeological exploration and excavations of 1991, approved by the Institute of Archeology of the Russian Academy of Sciences, stated that field research of archaeological sites can only be carried out “for scientific purposes by specialized institutions, museums, universities, state bodies for the protection of monuments and public organizations associated with such protection. The current Regulations on the conduct of archaeological excavations and exploration and on the Open Lists of 2001, approved by the Institute of Archeology of the Russian Academy of Sciences, also provide that “field archaeological research (excavations and exploration) can be carried out only for scientific, security and accounting purposes by specialized scientific and scientific -restoration institutions, higher educational institutions, museums and state bodies for the protection of historical and cultural monuments.

Thus, formally, the above documents do not contain a ban on issuing permits to non-governmental organizations. (As you know, institutions and museums can be both state-owned and private or municipal.) However, the general orientation of the commented document indicates that, in general, Open Sheets are issued precisely to specialized state organizations.

Due to the fact that the Law on Cultural Heritage Objects in Art. 45 established that the procedure for issuing permits for archaeological work should be established by the Government of the Russian Federation, at present a draft of the relevant Decree of the Government of the Russian Federation is being developed, approving the Regulations on the procedure for issuing Open Sheets. It contains a slightly different wording: “researchers with special training, modern methods of conducting excavations and exploration and fixing their results in the form of a Scientific Report have the right to receive an Open List and manage field archaeological work.” The above wording is intended, in our opinion, to liberalize the system for issuing Open Sheets, allowing not only employees of state organizations, but other qualified persons to conduct archaeological work. However, one should not forget that all these persons, after the completion of the relevant work, are obliged to transfer the discovered objects to the state part of the museum fund of the Russian Federation.

The issue of obtaining permission from the owner of the land plot to conduct excavations remains open. The legislation generally does not contain provisions that distinguish between the conduct of archaeological work on state, municipal or private lands. This problem is not so relevant in cases where the land plot on which archaeological field work is carried out by a state organization is in state ownership. (Most of the official archaeological work today is carried out on state-owned historical and cultural lands.) However, we were unable to find in the legislation the norms regulating excavations on private or municipal land.

Such a close interest in the problems of archaeological subjects today seems quite natural. It is no secret that in recent years our country has been swept by a wave of so-called "black archeology". In this regard, the mechanism provided by law for the acquisition by the state of ownership of archaeological heritage sites is increasingly failing. The greatest danger in this case, from our point of view, lies not so much in the fact that the newly discovered objects do not come into state ownership, but in the fact that unauthorized excavations can cause irreparable damage to the archaeological heritage of Russia.

As you know, in archeology, the so-called “context of the find” is of great importance (what things were found together, under what circumstances they fell into the ground, etc.) In this regard, in Soviet times, the main efforts of the legislator were aimed at preserving precisely immovable monuments ( settlements, burial grounds, ancient fortresses, etc.), and not individual items. This approach was facilitated by the fact that after the October Revolution, the state became the owner of the land, and hence the archaeological sites. On the other hand, large fortunes that allowed the creation of large private collections of cultural property were liquidated. Professional predatory excavations were pointless. Thus, the protection of the main source of archaeological finds - archaeological sites, was considered quite a sufficient measure to prevent the plunder of cultural property.

The liberalization of civil circulation that took place in our country significantly changed the situation that developed in the Soviet era. Today, land plots on the territory of which archaeological sites are located can be owned, leased, etc. private individuals. In addition, there were economic foundations for the creation of large private collections of cultural property. This led to the formation of a steady demand for them, and as a result of this, to the emergence of suppliers of such cultural property - the so-called "black archaeologists", leading a systematic mass robbery of archaeological sites.

The illegal market for archaeological finds is a very significant segment of the illegal market for cultural property. There is a significant number of collectors who wish to acquire archaeological objects. Thanks to the formation of an appropriate market, predatory excavations of archaeological sites have risen to a qualitatively new level. If earlier they were of a random nature and, because of this, caused minor damage, now they are dealt with by professionals who have sufficient knowledge, the necessary equipment and equipment, who purposefully select objects for the search for valuables. In modern conditions, there is a process of depersonalization of movable cultural property that enters the market. Almost all items are declared random finds. In addition, false information is given even about the region of the find in order not to attract competitors, and it was impossible to verify the legend about the circumstances of the find. It is almost impossible to restore the true context of the find in this case.

Thus, the introduction of archaeological objects into economic circulation, the formation and storage of collections of such cultural values ​​are largely illegal, due to the illegality of the initial acquisition of these items.

Archaeological objects are the most important source of information about the past.
Archaeological heritage is a set of material objects that have arisen as a result of human activity, preserved in natural conditions on the ground surface, in the bowels of the earth and under water, requiring the use of archaeological methods to identify and study.
The composition of the archaeological heritage:

• archaeological territory - a piece of land that includes an archaeological object (complex of objects) and adjacent lands that ensured its functioning in the past and are necessary for preservation in the present and future;
• archaeological territories are a collection of material remains that preserve traces of human activity and contain explicit or latent information about such activity;
• an archaeological monument is an object that has been identified and studied by archaeological methods and has a documentary fixation of information obtained in the process of discovery and study;
• an archaeological object is a real remains extracted during scientific excavations or in the course of economic and other activities, as well as found by chance and passed primary attribution and identification with respect to other homogeneous objects;
• a real remains is an object that reflects the life of a person, associated with an archaeological object and identified in the process of studying the object or found outside the object and suitable for obtaining information about the past.

The peculiarity of the archaeological heritage is that, firstly, the total number of archaeological sites is unknown; secondly, it is archaeological objects that are most exposed to the threat of destruction both during land and construction work and as a result of illegal excavations, and thirdly, the legislative framework in this area is extremely imperfect.
The archaeological heritage is part of the material culture, the main information about which can be obtained by archaeological methods. The heritage includes all traces of human habitation and consists of sites that record all manifestations of human activity, including abandoned buildings and ruins of all kinds (including underground and underwater), together with all movable cultural material.
The study of settlements of past eras provides the most complete and important information about the development of society and culture. All this information is drawn from the study of things found in the ground, excavated structures, interconnected by a special kind of stratification.
“Monuments of material culture,” wrote L.N. Gumilyov - clearly mark the periods of prosperity and decline of peoples and lend themselves to a clear dating. Things found in the ground, or ancient graves, do not seek to mislead the researcher or distort the facts.
In order to ensure the safety of the archaeological heritage and to correctly apply the legislation on the protection of historical monuments in practice, it is necessary directly in a special law (its concept will be discussed below) to reflect the basic legal provisions (conceptual apparatus) of concepts and definitions used in practical archeology.
The most important legal concept, which has not only scientific, but also practical significance, is the cultural layer.
We will not find the definition of the cultural layer in the regulations, so we turn to the specialized literature. This is what the author often has to do when analyzing objects of cultural heritage. The most detrimental in this regard is the legislation on the protection of archaeological monuments, since a lot of issues have not been regulated normatively. First of all, the legal apparatus of this institution is not developed, there are no definitions of archaeological sites in legal acts, and no classification of archeological monuments is given.
So, the cultural layer is the upper layer of the earth's interior, formed in the process of anthropogenic activity and representing a combination of material remains and earth layers processed in the course of economic activity. The cultural layer of archaeological territories as a place of preservation in natural conditions of archaeological objects and property remains is subject to protection and is excluded from the number of territories for conducting economic activities. The cultural layer usually has a darker color than the surrounding land. The composition of the cultural layer reflected the real historical process, all the originality of the material life of society. That is why the study of the cultural layer is a means of studying the historical process. The value of the cultural layer lies in the historical conclusions that can be drawn from its study.
The subject of archaeological excavations is the study of the placement of immovable objects and movable objects that are underground in anthropogenic or natural sediments (deposits) and are called cultural strata (layers, layers). All these layers are the result of human activity and that is why they are called the cultural layer. It develops over a long period of time.
Thus, the cultural layer consists of two inextricably linked components:

• remnants of buildings;
• stratifications reflecting the main direction of the economic life of this section of the settlement.

The most important sources of information are concentrated in the cultural layer. And it is the cultural layer that is most often destroyed during land, hydraulic and other works. Moreover, both settlements and burial grounds, which have long been known, are being destroyed. For example, in the early 1990s, a multi-layered settlement with materials from the Bronze and Iron Ages was destroyed in the Maravin tract near the village of Khilchitsy, the study of which is of great importance for clarifying the problem of ancient Belarusian cities, in particular, the city of Turov, the revival of which was addressed in 2004 attention of the Head of the Belarusian state.
Let us continue the analysis of the concepts that need to be included in the law “On the Protection of the Archaeological Heritage”, initiated by the author.
The earth's interior (in archeology) is the subsurface strata of the last geological epochs affected by human activity and preserving traces or material remains of such activity in the form of real objects or their reflections (imprints) in immediately adjacent layers.
Archaeological document - information about objects of archaeological heritage, their complexes and constituent elements, imprinted on material carriers (regardless of their form) and suitable for use in the process of cognition of the corresponding object, complex of objects or constituent elements.
Parking lots are places of life and economic activity of people of the Stone and Bronze Ages. (Since the sites have no external signs, they can only be detected if there is a cultural layer that stands out in a darker color from the surrounding geological rocks.)
Settlements are the remains of settlements whose inhabitants were engaged in agricultural activities.
Settlement - the remains of the ancient fortifications of the settlements, which once represented small fortresses surrounded by earthen ramparts and ditches.
Monuments are also ancient burials, represented by soil and burial mounds.
Mounds are artificial earth mounds over ancient graves, having a hemispherical shape, round in plan. There are mounds in the form of a truncated cone. Mounds are single, but more often they are grouped by two or three, or even several dozen, forming burial mounds.
If we talk about the threats and risks that archeological monuments expect, then two problems can be distinguished:

• the potential for destruction during excavation and construction work;
• danger of disappearance as a result of illegal excavations.

The study of this issue shows that since 1992
up to 2001, the state authorities for the protection of monuments did not organize a single expedition to control the state of archeological monuments in Belarus. At the same time, the destruction of archeological monuments is ongoing. Monuments perish during excavation and construction works. Often, archaeological sites are destroyed in preparation for important events.
Other countries are also facing a similar problem.
For example, contrary to the requirements of the law, the akimat of the city of Zhezkazgan allocated a land plot to a production corporation for the construction of engineering communications to the Zhaman-Aibat mine. Meanwhile, on the territory of the development of the deposit there are 4 monuments of history and culture - sites of the Neolithic period, sites-workshops of the Paleolithic era, sites-workshops of Kazbek, copper mining sites of the Bronze Age. The burial ground of the Bronze Age, which consists of more than 20 grave structures, was destroyed in the western part during the construction of the Waitas-Aidos-Zhezkazgan water pipeline.
This list can be continued, but I would like to propose some measures to criminalize relations in the field of illegal excavations of both archaeological sites and military graves. After all, irreparable damage to cultural heritage is caused by the so-called "black archaeologists", the fight against which is difficult for a number of reasons. Illegal treasure hunters open archeological monuments, military graves, dig up burial grounds. The main purpose of illegal treasure hunting is the extraction of antiques, including the bone remains of the buried (skulls) for private collections.
Among the reasons for illegal excavations are the imperfection of legislation, the availability of search equipment, the increase in the number of wealthy people who are interested in ancient objects and, oddly enough, the increased interest in national history. An important role was also played by the fact that the treasure-hunting movement developed on the basis of collectors' clubs, initially using their organizational structures and extensive connections.
The study of this problem shows that Belarusian archaeological finds are in special demand not only in Western Europe, but also in the capital cities of the CIS. In certain circles, it has become fashionable to have home museums of antiquities, in which archaeological objects (and these are mainly household utensils, household items, coins, etc.) take pride of place. Such a private "museum", consisting of archaeological finds, is in principle illegal, since archeological monuments are the exclusive property of the state, and the recovered items are subject to scientific research.
For an illegal treasure hunter, an archaeological site is a means of profit. The selected item is taken out of context. Every year, treasure hunters intensify their activities, especially when the ground is wet, loose, and favorable for work. As a rule, this happens in autumn and spring, which chronologically coincides with the traditional period of archaeological research conducted by research institutions.
Illegal excavations of archaeological sites are carried out both with the use of the latest metal detectors and with the help of construction equipment.
For example, on the night of February 2 to 3, 2002, “black archaeologists” brought equipment to the territory of the Olvia State Historical and Archaeological Reserve, which on January 17, 2002 by decree of the President of Ukraine, brought equipment and, guided by an exact plan with reference to area, overnight excavated more than 300 ancient graves, plundered about 600 graves and two dozen crypts.
Practice shows that illegal treasure hunting is widespread in virtually all regions of Belarus, but priority is given to ancient burials in Mogilev and Gomel regions. Burial mounds of the 10th-13th centuries have been preserved here. Many of them are destroyed. Archaeological monuments are dug up by "treasure hunters" even in the contaminated zone. In June 2004, in the Mogilev region, police officers detained a "black digger" with the prospect of bringing him to justice. Around the city of Minsk, almost all the mounds that stand in sight were uncovered during illegal excavations.
In recent years, the commercial circulation of archeological objects, previously based on the activities of a limited circle of professional archaeologists, has acquired the scale of a diversified business. However, bringing to justice for illegal excavations of archaeological sites is a rarity in the practice of both law enforcement and regulatory authorities.
It seems that the legislator can take the path of amending the criminal law norm establishing responsibility for the destruction, destruction or damage of a cultural monument (meaning Article 344 of the Criminal Code of the Republic of Belarus). This may be an independent part of this article, which, as a qualifying feature, provides for liability for actions that led to the destruction, destruction or damage of the monument, committed in order to search for archaeological objects or the remains of a military burial. Stricter liability should arise in the event of the commission of the same actions by an official whose authority includes the implementation of professional expeditionary activities to study the archaeological heritage or perpetuate the memory of the defenders of the Fatherland and victims of wars.
As a result, Art. 344 of the Criminal Code of the Republic of Belarus will be supplemented with two new parts of the following content (in the initiative version):
“Actions provided for by part one or two of this article, committed with the aim of searching for archaeological objects or real remains of military graves, are punished. ..
The actions provided for by the first or second part of this article, committed by an official using his official position, ... ".
Thus, a barrier will be created on the way of illegal archaeological excavations, illegal treasure hunting and unauthorized excavations of military graves.

UDC 130.2 (470 BBK 87

A.B. Shukhobodsky

object of archaeological heritage as a separate phenomenon of cultural values

The features of archeological monuments as heritage objects, the differences between the objects of archaeological heritage are characterized. objects of cultural heritage, monuments of history and culture in relation to protection procedures.

Keywords:

cultural value, object of archaeological heritage, object of cultural heritage, monument of history, monument of culture.

Currently, archeological monuments belong to one of the types of cultural heritage objects (monuments of history and culture). At the same time, the legislation constantly has to introduce separate clauses relating to objects of archaeological heritage, which indirectly indicates their non-identity with other objects of cultural heritage.

In the Law of the Russian Federation of June 25, 2002 No. 73-FZ “On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation” (hereinafter referred to as the Law on OKN), “objects of archaeological heritage” are highlighted. This is due to the fact that they are objects of cultural heritage of a special kind. They and related objects of material culture belong to a separate category. Like other "historical and cultural monuments", archeological monuments can be represented as separate objects, ensembles and places of interest. At the same time, archaeological heritage sites have a number of features that distinguish them from a number of other cultural heritage sites. Thus, all archeological monuments in terms of historical and cultural value belong to objects of federal significance and at the same time are recognized as an integral part of the world cultural heritage and receive the status of identified objects of cultural heritage from the day they are discovered.

Considering the differences between archeological monuments and monuments of history and culture, it is necessary to consider their inherent distinctive features.

The first distinguishing feature of an object of archaeological heritage is that, despite the direct provision of the Law that objects of cultural heritage are immovable property, objects of archaeological heritage can be both immovable and movable cultural property, which makes them a very special

group of historical and cultural monuments. At the same time, movable archaeological values ​​are mainly discovered during excavations at immovable archaeological heritage sites.

The second sign is that, unlike the integral arts and crafts, painting and sculpture, which are inextricably linked with the monument of history and culture and remain in it, movable objects of the archaeological heritage are removed from the excavation. Within three years from the date of the archaeological work, all discovered cultural values ​​(including anthropogenic, anthropological, paleozoological, paleobotanical and other objects of historical and cultural value) must be transferred for permanent storage to the state part of the Museum Fund of the Russian Federation. Thus, in relation to objects of archaeological heritage, unlike other objects of cultural heritage, the issue of museumification of movable cultural property is legally fixed.

Thirdly, in contrast to the purposeful work carried out to identify new "monuments of history and culture", with the aim of protecting them and preserving them in their locations, in relation to archaeological heritage objects, only in exceptional cases, rescue archaeological field work is allowed, with full or partial withdrawal archaeological finds from excavations. That is, systematic work to identify archeological monuments in accordance with the Law on OKN should not be carried out. This sharply narrowed the possibility of conducting a scientific study of archeological monuments, reducing all possibilities solely to measures to preserve these objects during construction and other earthworks, and not the possibility of conducting other studies. Such a limitation

is undoubtedly erroneous regarding this phenomenon, which has a long history of purely scientific excavations, which have greatly expanded the understanding of world history and made it possible to clarify the chronology of historical and prehistoric events. And in this case, one can disagree with Sigmund Freud, who said: “archaeological interests are quite commendable, but excavations are not carried out if the dwellings of living people are undermined by this, so that these dwellings collapse and bury people under their ruins.”

The fourth sign is that often the economic value of archaeological heritage objects can be significantly lower than the value of other cultural values ​​due to the fact that any evidence of the existence of past generations is recognized as archaeological values, since they carry information of a scientific and historical nature. Thus, they may be of interest only to researchers, complementing the picture of the events of the distant past, having no value as a work of art.

Fifth - "field archaeological research (excavations and reconnaissance) can be carried out only for scientific, security and accounting purposes by specialized scientific and scientific restoration institutions, higher educational institutions, museums and state bodies for the protection of historical and cultural monuments" . Moreover, work to identify and study objects of archaeological heritage is carried out on the basis of a permit (open sheet) issued for a period of not more than one year for the right to conduct a certain type of such work. An open list is issued not to an institution, but to a specific researcher who has the appropriate training and qualifications. The report on archaeological field work and all field documentation within three years from the date of expiration of the open sheet must be transferred for storage to the Archival Fund of the Russian Federation in accordance with the Federal Law of October 22, 2004 No. 125-FZ "On Archival Affairs in the Russian Federation".

The sixth sign - paragraph 3 of Article 49 of the Law on OKN establishes that the archeological monument is exclusively in state ownership, and paragraph 1 of Article 50 establishes the impossibility of alienating an object of archaeological heritage from the state

noah property . In addition, land plots or sections of a water body, within which archeological monuments are located, are limited in circulation - according to the Land Code of the Russian Federation (hereinafter referred to as the Land Code of the Russian Federation), they are not provided for private ownership.

It is also specific that an archeological monument and a land plot or a section of a water body within which it is located are in civil circulation separately. At the same time, land plots or sections of a water body within the boundaries of an archaeological heritage site, in accordance with Article 99 of the Land Code of the Russian Federation, are classified as historical and cultural lands, the legal regime on which is regulated by the Law on OKN, the Land Code of the Russian Federation and the Federal Law of the Russian Federation "On state registration of rights to real estate and transactions with him.

Within the lands of historical and cultural purpose, a special legal regime for the use of lands is introduced, prohibiting activities that are incompatible with the main purpose of these lands; in the case of an object of archaeological heritage, the main purpose is its preservation and use. On the lands of historical and cultural purpose, including the lands of archeological monuments subject to research and conservation, according to the Land Code of the Russian Federation, any economic activity may be prohibited. In accordance with Art. 79; 94; Art. 99 of this Code, lands of historical and cultural purpose, if they are not used for their intended purpose, may be withdrawn from the land user.

It is also specific that the objects of archaeological heritage are complex monuments that combine the features of natural and historical and cultural objects. In this regard, the issues of their protection are considered in many legislative acts. A very extensive section is contained in the Town Planning Code of the Russian Federation. "... In settlements and territories with historical and cultural monuments, including archeological monuments ..., within which urban planning, economic or other activities that are harmful to objects of historical and cultural heritage are prohibited or restricted" . Regarding natural objects, the issues of their protection are considered in environmental legislation. Due to the fact that archaeological sites

Society

the mints are located on the surface and in the soil layer of modern land, the issues of protection of archaeological sites are considered in land legislation. Archaeological sites lying below the modern soil layer, i.e. in the subsoil, are subject to the Law of the Russian Federation "On Subsoil".

Given the enormous scientific and cultural value of archeological monuments, as well as the fact that economic activity and construction can cause significant damage to monuments, the legislation provides for a number of special measures to ensure their safety during construction work.

According to the Law on OKN, the features of designing and carrying out land management, excavation, construction, reclamation, economic and other works are carried out only if there is a conclusion of a historical and cultural expertise on the absence of cultural heritage objects on the territory to be developed. In the event that objects of archaeological heritage are found in the territory to be developed, sections on ensuring the safety of the discovered objects must be included in the projects for such work. The Law on OKN prohibits such use of a land plot with objects of archaeological heritage, which may worsen their condition or harm the surrounding historical and cultural environment. The authorities for the protection of cultural heritage objects have the right to suspend construction or other work if in the course of their implementation there is a threat to the existence of an object of archaeological heritage or the measures provided for by law to ensure its safety are not observed. Criminal, administrative and other legal liability is possible for violations of the legislation regarding archeological monuments. Persons who have caused harm to a cultural heritage object are also required to reimburse the cost of the measures necessary to preserve it, which does not relieve these persons from administrative and criminal liability provided for such actions.

The essential difference between an archeological monument and other monuments of history and culture is the way in which the preservation of archaeological heritage objects is ensured. Domestic and foreign practice uses

the following forms and options for ensuring the preservation of archeological monuments in the areas of construction and other earthworks.

a) A complete scientific study of archaeological sites, the integrity of which may be violated during construction. Such a study includes: the identification of monuments through archaeological exploration on the ground; stationary archaeological excavations of monuments, which are carried out, as a rule, manually in compliance with a certain methodology, with the fixation of all the features of the monument and the remains of structures, burials, etc. located on it; cameral processing of clothing and other materials obtained during exploration and excavations, their conservation and restoration, carrying out the necessary special analyzes, scientific description of materials, etc.; preparation of scientific reporting on field and cameral research; transfer of field work materials for permanent storage in museums and other state storage facilities. Scientific research is the most common and universal form of ensuring the safety of archeological monuments in the areas of construction work.

b) Removal (evacuation) of monuments outside the flood zones or construction works. With regard to those objects of archaeological heritage that relate to immovable monuments of history and culture, this form of preservation can be applied to a very limited extent and, as a rule, only applies to individual elements of monuments (individual architectural details, tombs, rock paintings, etc. .).

c) Creation of protective structures that limit the harmful effects of the designed facilities on archaeological sites. It can be recommended during the construction of large reservoirs and only in relation to the most valuable monuments, since the cost of creating protective devices, as a rule, is higher than the cost of a full scientific study of monuments. At the same time, there has recently been a trend towards the creation of demonstration sites during the restoration of buildings and structures, which make it possible to get an idea of ​​the history of the object by conserving individual elements of archaeological monuments at the site of their finds under high-strength glazing.

d) Exclusion of areas of archaeological sites from the areas of

construction work or flood zones (for example, changing the routes of gas and oil pipelines so that they do not affect archaeological sites, changing the location of individual structures, etc.). It can be recommended only if there is a technical possibility of such an exception.

A specific complementary method for ensuring the safety of archaeological sites in construction zones is archaeological supervision. The implementation of this complex of measures for the protection of monuments in the zones of construction work by archaeologists, as practice shows, provides the optimal solution to the following tasks:

1) Control over compliance with all norms of the current legislation on the protection of historical and cultural monuments in the construction area.

2) Control over the completeness and quality of the implementation of measures for the protection of a particular object of archaeological heritage.

3) Monitoring of the archaeological situation throughout the construction area in the process of construction and installation works.

4) Evaluation of the overall results of archaeological protection work in terms of predicting the archaeological situation in the adjacent territory.

Having demonstrated that archeological monuments are significantly different from other objects of cultural heritage, it is necessary to single out objects of archaeological heritage as a separate phenomenon, since they have a dual nature of movable and real estate. Their legal status should be determined by special separate legislation. Moreover, immovable monuments of archeology should have the status of monuments of history and culture (objects of cultural heritage), and movable ones should be museumified, like movable cultural values ​​removed from excavations, and have the status of museum objects.

A lot of problems are caused by the fact that when purchasing or renting a monument, the person carrying out the transaction has no idea about the need, and even more so the cost of carrying out rescue archaeological work. In this connection, the owners and tenants are constantly trying to destroy archeological monuments in order to avoid additional costs. This issue should be resolved at the state and municipal level.

Another unresolved issue is that after the full

philological archaeological excavations, when no cultural property remains in the ground at the site and the site is fully explored from an archaeological point of view, it is not removed from the list of archaeological objects of cultural heritage. In fact, it ceases to be such and is only a mark (reference point) where the object of the archaeological heritage was before the archaeological work.

In this regard, after a full range of archaeological work has been carried out and all cultural values ​​have been removed from the excavation, and in the absence of immovable archeological monuments at a particular site, this site should be removed from the register of archaeological heritage objects as a monument of history and culture and receive the status of a fully explored in the register. object of archaeological heritage with the removal of all encumbrances.

In order to avoid the loss of objects of archaeological heritage, a land plot of potential archaeological value, intended for the construction of buildings and structures that require penetration into the soil layer, cannot be alienated or transferred for construction and other earthworks, either by state bodies or municipalities, without prior carrying out emergency rescue archaeological work. The cost of these works is subsequently added to the cost of selling or renting this land. A similar norm should be legislatively fixed when carrying out repair and other permitted works on such land plots.

A constantly aggravating problem is "black archeology", that is, illegal excavations. The greatest danger lies not so much in the fact that the recovered cultural values ​​end up on the black market, but in the fact that irreparable damage is caused to the archaeological heritage of Russia, and, consequently, to the entire world cultural heritage. As a result of the actions of "black archaeologists", the contextual perception of the artifact is lost, due to the removal of the archaeological heritage object from its natural environment and the loss of the historical information contained in the existing system, the connection between the past and the future is lost. In connection with the growing interest in culture and history, along with the cognitive component, a commercial one was formed, expressed

Society

arts and crafts, painting or sculpture is a common theft, while illegal excavation is of a much more complex legal nature.

It should also be noted that the peculiarity of archeological monuments is that their perception by society is often abstract or mythological. For example, Troy is perceived more in connection with Heinrich Schliemann or a movie than with the city itself. Moreover, although most scholars are of the opinion that Schliemann found exactly Troy, there is no full guarantee of identifying this city with the mythological Troy of Homer. Tutankhamen is perceived as Howard Carter's discovery of his unlooted tomb, and not as the pharaoh of the New Kingdom; The Dovmont sword in Pskov is not related to Dovmont, as it was created 200-300 years later, etc.

Summing up the consideration of archaeological heritage sites, it is important to note that archeological monuments are a separate phenomenon in the cultural system and should be considered as a separate phenomenon in the field of inheritance and preservation of cultural identity.

in the steady demand for archaeological artifacts. Due to the lack of a developed market for trade in cultural property in Russia, this activity is of a criminal nature and has become extremely widespread.

In connection with the development of the Internet, the availability of previously classified information about the possible location of archaeological heritage sites and the availability of modern equipment (metal detectors) that can detect cultural property at a depth of up to two meters have turned this activity into a large illegal business. This issue requires a strict legal solution, otherwise the cultural heritage will be greatly damaged. In particular, one cannot but agree with the proposal of T.R. Sabitov to include in the Criminal Code of the Russian Federation the article “Illegal appropriation of cultural property that does not have an owner, or whose owner is unknown” . The criminal phenomenon described by us is also a specific feature of archaeological heritage sites. It is not typical for other monuments of history and culture, since the removal of decorative items from cultural heritage sites

bibliography:

Urban Planning Code of the Russian Federation. - M.: Eksmo, 2009. - 192 p.

Law of the Russian Federation of July 21, 1997 No. 122-FZ "On state registration of rights to real estate and transactions with it" // СЗ RF. - 1997, No. 30. - Art. 3594.

Law of the Russian Federation of January 10, 2002 No. No. 7-FZ "On Environmental Protection" // SZ RF. - 2002, No. 32. -St. 133.

Law of the Russian Federation of June 25, 2002 No. 73-FZ “On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation // SZ RF. - 2002, No. 26. - Art. 2519.

Law of the Russian Federation of October 22, 2004 No. 125-FZ "On Archival Affairs in the Russian Federation" // SZ RF. - 2006, No. 43. - Art. 4169.

Regulations on the production of archaeological excavations and reconnaissance and on open sheets. Approved by the Academic Council of the Institute of Archeology of the Russian Academy of Sciences on February 23, 2001 - M., 2001. - Internet resource. Access mode: http://www.archaeology.rU/ONLINE/Documents/otkr_list.html#top/ (Accessed 05/20/2011).

Decree of the Council of Ministers of the USSR of September 16, 1982 No. 865 “On approval of the Regulations on the protection and use of monuments of history and culture” // SP USSR. - 1982, No. 26. -St. 133.

Sabitov T.R. Protection of cultural values: criminal law and criminological aspects / Abstract of the thesis. ... cand. legal Sciences. - Omsk. 2002. - 12 p.

Sukhov P.A. Archaeological monuments, their protection, accounting and primary study. - M.-L.: AN SSSR, 1941. - 124 p.

Troyanovsky S. What black diggers hunt for // Novgorod Internet newspaper. - 2010, August 31. - Internet resource. Access mode: http://vnnews.ru/actual/chernokopateli (05/20/2011).

Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ. With comments on recent changes. - M., Eksmo, 2011 - 272 p.

Freud Z. Psychology of the masses and analysis of the human "I" // The future of one illusion / Per. with him. - St. Petersburg: ABC classics, 2009. - S. 158.

PROBLEMS OF LAW ENFORCEMENT PRACTICE

V. V. LAVROV

SOME PROBLEMS OF LEGAL PROTECTION OF OBJECTS
ARCHEOLOGICAL HERITAGE

Archaeological heritage objects have been the subject of close attention of the Russian legislator for more than three centuries. In countries rich in archeological monuments, national legislation on the protection and history of archaeological heritage has a long tradition. The Russian state, on the vast territory of which there are a large number of archaeological sites, began to pay serious attention to the issues of their protection since the 18th century. It can be said with full confidence that the legislation of the Russian Empire on the protection of historical and cultural monuments until 1917 was mainly focused on archeological monuments.

The importance attached by the authorities to the study and protection of archaeological sites can be judged from the fact that the Russian Archaeological Society, established in 1846, was renamed the Imperial Russian Archaeological Society in 1849, and since 1852 it has traditionally been headed by one of great princes. From 1852 to 1864, the Assistant Chairman of the Society was Count D. N. Bludov, who in 1839 held the position of Prosecutor General of the Russian Empire, from 1839 to 1861 was the Chief Manager of the Second Department of His Imperial Majesty's Own Chancellery, and from 1855 to 1864 - Petersburg Academy of Sciences (the highest scientific institution of the Russian Empire until 1917). Since 1860, the emperor allowed the Archaeological Society to be located in the house that was occupied by the Second Department of His Imperial Majesty's Own Chancellery, where the Society was located until 1918.

The protection and study of archeological monuments were the subject of interstate agreements (the Olympic Treaty of 1874 between Greece and Germany, the Treaty between Greece and France of 1887 and a number of other agreements).

As a result of archaeological research, discoveries are made, which in a number of cases are important not only for the state in whose territory they were made, but for all mankind. This circumstance led to drawing attention to the problem of the protection of archaeological monuments of the international community. At the ninth session of the General Conference of the United Nations Educational, Scientific and Cultural Organization, held in New Delhi, on December 5, 1956, a Recommendation was adopted defining the principles of international regulation of archaeological excavations.

In London, on May 6, 1969, the European Convention for the Protection of the Archaeological Heritage was signed, which entered into force on November 20, 1970. The USSR joined the Convention on February 14, 1991. In 1992, the Convention was revised. And only in 2011, the Federal Law “On the Ratification of the European Convention for the Protection of the Archaeological Heritage (Revised)” dated June 27, 2011 No. 163-FZ was adopted. Thus, Russia becomes party to the revised European Convention for the Protection of the Archaeological Heritage.

The Convention provides a more precise definition of the elements of the archaeological heritage, which are considered to be all remains and objects, any other traces of humanity from past eras.

The main provisions of the Convention are as follows: each party undertakes to create a legal system for the protection of the archaeological heritage; ensure that potentially destructive methods are used only by qualified and specifically authorized persons; take measures for the physical protection of the archaeological heritage; promote the exchange of its elements for scientific purposes; organize state financial support for archaeological research; promote international and research programs; provide technical and scientific assistance through the exchange of experience and experts.

In order to fulfill the obligations assumed at the conclusion of an international treaty, states may implement certain legislative measures aimed at ensuring them.

Federal Law No. 245-FZ dated July 23, 2013 amended the Federal Law No. 73-FZ dated June 25, 2006 “On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation”, the Law of the Russian Federation “On the export and import of cultural property” dated April 15, 1993 No. 4804-1, to the Civil Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, the Code of Administrative Offenses of the Russian Federation with regard to the legal protection of archaeological heritage sites .

Federal Law No. 245-FZ of July 23, 2013 entered into force on August 27, 2013, with the exception of provisions relating to administrative and criminal liability for encroachments on relations in the field of protection of archaeological sites. Article 7.15.1 of the Code of Administrative Offenses of the Russian Federation "Illegal circulation of archaeological objects" is effective from July 27, 2014, article 7.33 of the Code of Administrative Offenses of the Russian Federation "Evasion of the performer of earthworks, construction, reclamation, economic or other works or archaeological field work carried out on the basis of a permit (open sheet) , from the mandatory transfer to the state of cultural property discovered as a result of such work" in the new edition and Article 2433 of the Criminal Code of the Russian Federation "Evasion of the performer of earthworks, construction, reclamation, economic or other works or archaeological field work carried out on the basis of a permit (open sheet), from the mandatory transfer to the state of items found during such work that have a special cultural value, or cultural values ​​on a large scale” will come into force on July 27, 2015.

Despite the significant changes that were made to the legislation of the Russian Federation by the Federal Law of July 23, 2013 No. 245-FZ, many problems related to the proper protection and study of archaeological heritage sites remained unresolved at the level of legal regulation. Considering the limited volume of the publication, we will dwell only on some of them.

First of all, this concerns the issuance of a permit for the right to conduct archaeological work.

In accordance with paragraph 3 of Art. 45.1 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" the procedure for issuing permits (open sheets), suspension and termination of their validity is established by the Government of the Russian Federation.

Decree of the Government of the Russian Federation “On Approval of the Rules for the Issuance, Suspension and Termination of Permits (Open Sheets) for Work to Identify and Study Archaeological Heritage Sites” dated February 20, 2014 No. 127 was adopted.

Paragraph 4 of Art. 45.1 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" provides that permits (open sheets) are issued to individuals - citizens of the Russian Federation who have the scientific and practical knowledge necessary to conduct archaeological field work and prepare a scientific report on the performed archaeological field work, and who are in labor relations with legal entities whose statutory goals are the conduct of archaeological field work, and (or) scientific research related to the conduct of archaeological field work, and (or) the identification and collection of museum objects and museum collections , and (or) training of highly qualified personnel in the relevant specialty.

This provision may lead in practice to the fact that persons who do not have sufficient qualifications will be allowed to conduct archaeological work, and this, in turn, will entail the loss of relevant archaeological sites for science. Such a judgment is due to the following circumstances.

Any legal entity, regardless of the legal form, can be a legal entity whose statutory goals are to conduct archaeological field work, i.e., archaeological work can be carried out by organizations that act not in the interests of science, but in the interests of customers.

The number of legal entities whose employees can receive open lists includes organizations that carry out "training of highly qualified personnel in the relevant specialty." However, what specialty are we talking about? It is logical to assume archeology as a specialty. However, in the All-Russian Classifier of Specialties in Education (OK 009-2003), approved by the Decree of the State Committee of the Russian Federation for Standardization and Metrology dated September 30, 2003 No. 276-st, there is no specialty "archaeology". Close to it are specialties 030400 "History" - Bachelor of History, Master of History and 030401 "History" - Historian, teacher of history.

In the Nomenclature of specialties of scientific workers, approved by the Order of the Ministry of Education and Science of the Russian Federation dated February 25, 2009 No. 59, the section "historical sciences" provides for the specialty "archeology". However, this classification applies only to persons with an appropriate academic degree.

In order to optimize archaeological work from the point of view of their scientific validity, it would be necessary to introduce compulsory licensing for legal entities specified in paragraph 4 of Art. 45.1 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation". To do this, it is necessary to supplement paragraph 4 of the said article with the words: “and having a license to carry out archaeological field work”, and also provide for paragraph 4.1 of the following content: “the procedure for obtaining a license to carry out archaeological field work and the requirements for license applicants are established by the Government of the Russian Federation” .

In accordance with paragraph 13 of Art. 45.1 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" the performer of archaeological field work is an individual who has carried out archaeological field work, and a legal entity with which such an individual has an employment relationship, within three years from on the expiration date of the permit (open sheet) are obliged to transfer, in accordance with the procedure established by the federal body for the protection of cultural heritage objects, all seized archaeological objects (including anthropogenic, anthropological, paleozoological, paleobotanical and other objects that have a historical and cultural

value) to the state part of the Museum Fund of the Russian Federation.

The procedure for the formation of the Museum Fund of the Russian Federation is regulated by the Federal Law "On the Museum Fund of the Russian Federation and Museums in the Russian Federation" dated May 26, 1996 No. 54-FZ and the regulatory legal acts of the executive authorities of the Russian Federation adopted in accordance with it - the Regulations on the Museum Fund of the Russian Federation, approved by Decree of the Government of the Russian Federation of February 12, 1998 No. 179, which does not establish a clear procedure for the transfer of archaeological items to the state part of the Museum Fund. The previously valid Instructions for the Accounting and Storage of Museum Treasures in State Museums of the USSR, approved by the Order of the USSR Ministry of Culture dated July 17, 1985 No. 290, was canceled in 2009 by the Order of the Ministry of Culture of the Russian Federation “On Approval of the Uniform Rules for Organizing the Formation, Accounting, preservation and use of museum objects and museum collections located in the museums of the Russian Federation” dated December 8, 2009 No. 842, and the latter document was canceled by Order of the Ministry of Culture of the Russian Federation dated March 11, 2010 No. 116.

Thus, today there is no procedure for the transfer of relevant items to the state part of the Museum Fund, which can lead to theft of cultural property obtained as a result of archaeological work.

According to paragraph 15 of Art. 45.1 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" a scientific report on the implementation of archaeological field work is subject to transfer to the Archival Fund of the Russian Academy of Sciences within three years.

A particular problem is the acquisition of land plots, within the boundaries of which objects of archaeological heritage are located, into private ownership.

The legal regime of a land plot, within the boundaries of which an object of archaeological heritage is located, is regulated by Art. 49 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation": the federal law establishes a separate circulation of the object of archaeological heritage and the land within which it is located; from the moment of discovery of an object of archaeological heritage, the owner of a land plot can exercise his rights to use the site in compliance with the requirements established by law to ensure the safety of the identified object.

Objects of archaeological heritage are in accordance with paragraph 3 of Art. 49 of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" in state ownership and in accordance with paragraph 1 of Art. 50 of this Law are not subject to alienation from state property.

Land plots occupied by objects of archaeological heritage are limited in circulation (subparagraph 4, paragraph 5, article 27 of the Land Code of the Russian Federation).

Land plots classified as lands restricted in circulation are not provided for private ownership, with the exception of cases established by federal laws (paragraph 2, clause 2, article 27 of the Land Code of the Russian Federation).

Thus, it can be stated that the current legislation has a general ban on the privatization of land plots that are classified as limited in circulation, with the exception of those cases established by federal laws.

On the basis of the construction on the separate circulation of the land plot and the object of archaeological heritage, it is concluded that the land plot is in free civil circulation.

Such a conclusion leads to the fact that in law enforcement practice the issue of privatization of a land plot within which an object of archaeological heritage is located is resolved in a number of cases positively.

An example of this approach is the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 21, 2009 No. 3573/09 in case No. A52-1335/2008, issued in the case of the privatization by the owner of a building of a land plot within the boundaries of which an object of archaeological heritage is located.

Justifying the possibility of privatizing the land plot within the boundaries of which the object of archaeological heritage was located, the Presidium of the Supreme Arbitration Court was guided by the following.

In accordance with paragraph 1 of Art. 36 of the Land Code of the Russian Federation, unless otherwise provided by federal laws, the owners of buildings have the exclusive right to privatize or acquire the right to lease land plots on which these buildings are located. This right is exercised in the manner and under the conditions established by the Land Code and federal laws.

However, as follows from paragraph 1 of Art. 36 of the Land Code of the Russian Federation, the possibility of acquiring rights to land plots (ownership or lease) by building owners depends on restrictions on the rights to land plots due to the achievement of a balance of public and private interests. As indicated in the Ruling of the Constitutional Court of the Russian Federation dated May 12, 2005 No. 187, the state may determine the range of objects (in this case, land plots) that are not subject to privatization if the purpose, location and other circumstances that determine the peculiarities of the legal regime of the land plot , exclude the possibility of transferring it to the property .

In confirmation of the legal position of the Constitutional Court of the Russian Federation in relation to the relations on the privatization of land plots, the above Ruling of the Constitutional Court notes that land plots classified as lands restricted in circulation are not provided for private ownership, with the exception of cases provided for by federal laws (para. 2 clause 2 article 27 of the Land Code of the Russian Federation).

In the current legislation, two non-identical concepts should be distinguished: “granting ownership” of a land plot and “possession by right of ownership” of a land plot.

The provisions of the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation", allowing the possibility of owning land plots within which objects of archaeological heritage are located, should be understood as an indication of the possibility of preserving the previously arisen ownership of land a site in the event that subsequently an object of archaeological heritage is found within the boundaries of this land plot and this land plot acquires an appropriate legal regime.

Thus, we can conclude that the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in the Resolution of July 21, 2009 No. 3573/09 in case No. A52-133512008, is unfounded. It should be noted that in the practice of courts of general jurisdiction and arbitration courts there was another approach to the privatization of land plots located within the boundaries of territories occupied by objects of archaeological heritage, which does not allow such. However, the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation considered here served as the beginning of the formation of a unified approach that allows the possibility of privatization of this category of land.

Privatization of land plots occupied by objects of archaeological heritage can lead to negative consequences. First of all, we are talking about the impossibility in this case of scientific study of traces of human existence partially or completely hidden in the earth, which are located in the cultural layer.

All of the above indicates that it is advisable to continue to consistently improve the legislation that forms the legal basis for the protection and scientific study of archaeological heritage sites in modern Russia, and the practice of its application.

In accordance with Art. 44 of the Constitution of the Russian Federation, everyone has equal access to cultural values, is obliged to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments.

The main legal act currently regulating the issue of preserving historical and cultural heritage on the territory of the Russian Federation is the Federal Law of June 25, 2002 N 73-FZ "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation" (hereinafter - OKN Law).

In Art. 3 of the above Law defines an object of cultural heritage, including an object of archaeological heritage - "traces of human existence in past eras partially or completely hidden in the ground or under water (including all archaeological objects and cultural layers associated with such traces), the main or one of the main sources of information about which are archaeological excavations or finds.The objects of archaeological heritage are, among other things, settlements, mounds, ground burials, ancient burials, settlements, parking lots, stone sculptures, steles, rock carvings, remains of ancient fortifications, industries, canals, ships, roads, places of ancient religious rites, cultural layers classified as objects of archaeological heritage.

In Art. 34 of the same Law also refers to protection zones for cultural heritage sites. At the same time, as such, the concept of protection zones is not given. It is pointed out that "in order to ensure the safety of a cultural heritage object in its historical environment, zones of protection of a cultural heritage object are established on the territory adjacent to it: a buffer zone, a zone for regulating development and economic activity, a zone of protected natural landscape."

It should be noted that this provision was borrowed from Art. 33 of the Law of the RSFSR of December 15, 1978 "On the protection and use of historical and cultural monuments", which was also duplicated in paragraph 30 of the Regulations on the protection and use of historical and cultural monuments, approved by the Decree of the Council of Ministers of the USSR of September 16, 1982 N 865 and clause 40 of the Instruction on the procedure for accounting, ensuring the preservation, maintenance, use and restoration of immovable monuments of history and culture, approved by Order of the USSR Ministry of Culture of 05/13/1986 N 203. These norms contained similar wording and a listing of the same protection zones (with minor changes in names.

Due to the fact that the composition of protection zones and their regime is developed and approved by the project of protection zones, and the procedure for the development and approval of such was first approved by the Government of the Russian Federation only in 2008, for a long time no protection zones were established for cultural heritage sites. And given that the financing of this event is entrusted primarily to state and municipal authorities, and, only if desired, to individuals and legal entities, so far such projects of protection zones, and, accordingly, the protection zones themselves for cultural heritage sites very few have been established on the territory of the Russian Federation (precise summary data are not available even in the Ministry of Culture of the Russian Federation). Thus, most cultural heritage sites today, without these zones, are actually poorly protected from possible negative impact as a result of new economic development of adjacent land plots, as well as active urban development.

In order to somehow correct this situation, some constituent entities of the Russian Federation (for example, the Krasnodar Territory), without waiting for the issue to be resolved at the federal level, independently introduced the concept of "temporary buffer zones" by their own laws back in 2003 with the establishment of their sizes and the effect only until development and approval of projects of protection zones.

And so, after analyzing the current situation, as well as the practice of the constituent entities of the Russian Federation, in 2016, the Federal Law of 04/05/2016 N 95-ФЗ "On Amendments to the Federal Law" On Cultural Heritage Objects (Monuments of History and Culture) of the Peoples of the Russian Federation " and Article 15 of the Federal Law "On the State Real Estate Cadastre", according to which Article 34.1 "Protection zones of cultural heritage objects" was introduced into the Law on OKN. Part 1 of this article defines the protective zone of a cultural heritage object - territories that are adjacent to the included in the register of monuments and ensembles and within whose boundaries, in order to ensure the safety of cultural heritage sites and compositional-view relationships (panoramas), the construction of capital construction facilities and their reconstruction associated with a change in their parameters (height, number of floors, area), with the exception of construction and reconstruction of linear objects. IT zones. These protection zones are introduced temporarily until the development and approval of projects for protection zones, i.e. in fact, they must solve the acute problem described above of the development of territories adjacent to cultural heritage sites, and causing harm to the latter as a result.

However, with the adoption of this Law, a number of problems arise. Within the framework of this article, only the aspect related to the objects of archaeological heritage will be considered.

So, upon careful reading of Article 34.1 of the Law on CHO, it turns out that protection zones are not established for archaeological heritage sites. There are logical questions - why and how to be?

We are starting to study this issue and we are asking for an answer, first of all, the Ministry of Culture of the Russian Federation, which was the initiator of the adoption of the above-mentioned Law. And we are surprised to learn that the position of the said Ministry comes down to the fact that protection zones are not needed in principle for objects of archaeological heritage.

So, in the letters of the Ministry of Culture of the Russian Federation dated December 29, 2014 N 3726-12-06 and dated June 29, 2015 N 2736-12-06 on the refusal to agree on the project of protection zones for the archeological monument "Semikarakorskoye settlement" (Rostov region) it is reported that "the design of zones for the protection of historical and cultural monuments is an element of urban planning zoning of the territory, which is primarily aimed at preserving the specific disclosure of historical buildings and structures and preserving the historical environment of cultural heritage objects ... Thus, a set of measures for the state protection of objects hidden in the ground of the archaeological heritage, ensuring their safety, includes the establishment of the boundaries of its territory ... The establishment of protection zones for objects of archaeological heritage hidden in the ground does not seem appropriate.”

This interpretation is given by the Ministry solely from reading Art. 34 of the OKN Law. At the same time, of course, this article does not directly say anything about the fact that protection zones are not established for objects of archaeological heritage or objects hidden underground. This is not mentioned in the current Regulations on the zones of protection of cultural heritage objects (monuments of history and culture) of the peoples of the Russian Federation. Those. the interpretation of the ministry is purely subjective.

If we turn to the practice of resolving this issue under the USSR, then in the same already mentioned Regulations on the protection and use of historical and cultural monuments, it was clearly stated that protection zones are established to ensure safety, including archeological monuments.

This position is also absolutely logical from the point of view of practice. So, if we refuse protection zones for archaeological heritage sites, it turns out that it will be possible to carry out work of any nature (especially earthworks and construction) right next to the territory of the monument. But such work can lead to its damage: sliding into the pit and collapse, affecting the cultural layer, which was accidentally discovered and was not included in the territory of the monument, damage by tractors, bulldozers and other heavy construction equipment, storage of soil (dumps), etc. Here additionally, it is necessary to take into account the complexity of unambiguously determining the territory of the monument for archaeological heritage sites. After all, not for every monument of archeology, depending on its type, this is possible without full-fledged excavations. So, for example, the main way to determine the boundaries of the territory of an archaeological monument is pitting. At the same time, according to the Regulations on the procedure for conducting archaeological field work and compiling scientific reporting documentation, pitting on archaeological monuments - burial mounds - is strictly prohibited. And given that the mounds of mounds under the influence of time (weathering, plowing, etc.) swim and stretch, and can also have ditches and grooves located around the mound (at different distances), as well as inter-kurgan space (between mounds in one mound group), it is not always possible to establish the exact boundary of the site. And the lack of protection zones will actually lead to their possible damage. Similarly, this may apply to both the settlement and the ground burial ground. In general, the situation with fortresses, which, as a rule, are monuments of archeology, but combine architecture, will be unclear. If in this case the Ministry proceeds from the factor of "hiddenness under the ground", then how to define it - many fortresses and settlements are actually earthen ramparts with elements of ruins that go outside. Whether it is hidden underground or not is again a purely subjective opinion. But they need protection from economic activity no less than architectural monuments.

The main acuteness of the problem under consideration, in general, is given immediately by 3 factors:

Far from all objects of archaeological heritage have a precisely defined territory, and therefore it is not clear what size of the land plot around the archaeological monument should be indicated in the project documentation submitted for approval;

In connection with the cancellation of the PSA-2007, which provided for such a protective measure as archaeological supervision carried out in the area of ​​construction work near the objects of archaeological heritage, now even without protection zones it actually becomes impossible to ensure their safety in general;

Considering that protective zones of a temporary nature have now been introduced at the federal level and it is clearly defined for which objects of cultural heritage they are established, the continued existence of the provision on temporary protective zones in regional laws, including in terms of objects of archaeological heritage, becomes illegal, which leads to their abolition and, consequently, the abandonment of archaeological heritage sites without any protection in this part.

Trying to understand the motives for such an interpretation by the federal authorities, it seems logical to assume that there is no funding for the development and establishment of protection zones for them (after all, all archaeological heritage sites are federal, and their number is overwhelming compared to other cultural heritage sites), as well as the impossibility of establishing restrictions of an arbitrary nature on a sufficiently large number of land plots and, in fact, their withdrawal from circulation (difficult socio-economic situation, discontent of people).

At the same time, we believe that simply eliminating protection zones as a type of measure to ensure the safety of archaeological heritage sites is unacceptable, this will lead to their uncontrolled destruction.

It seems that the introduced protective zones should be extended to archaeological heritage sites with the possibility of their reduction in the development of projects of protection zones on the basis of complex scientific research if such a desire arises from an interested person (the one who intends to develop a nearby land plot that falls into this protective zone) . Or, as an option, establish in the Law on OKN or the newly adopted GOSTs that replaced the PSA-2007, such a preventive security measure as archaeological supervision, if the work is planned to be carried out in the area of ​​the archaeological heritage site. At the same time, the size of the zone can be set according to the example of temporary security zones established in the Krasnodar Territory: depending on the type of archeological monument and its size.

Bibliography:

1. The Constitution of the Russian Federation. Adopted by popular vote on December 12, 1993 (subject to amendments made by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 N 6-FKZ, of December 30, 2008 N 7-FKZ, of February 5, 2014 . N 2-FKZ and dated July 21, 2014 N 11-FKZ) // Rossiyskaya Gazeta. 1993. Dec 25; Sobr. legislation Ros. Federation. 2014. N 31. Art. 4398.
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10. Letter of the Ministry of Culture of the Russian Federation dated June 29, 2015 N 2736-12-06 // The text of the document has not been officially published. Correspondence of the Ministry of Culture of the Russian Federation and the Ministry of Culture of the Rostov Region.
11. On the approval of the Regulations on the zones of protection of cultural heritage objects (monuments of history and culture) of the peoples of the Russian Federation and on the recognition as invalid of certain provisions of the regulatory legal acts of the Government of the Russian Federation: Decree of the Government of the Russian Federation of September 12, 2015 N 972 // Collected. legislation Ros. Federation. 2015. N 38. Art. 5298.
12. Regulations on the procedure for conducting archaeological field work and compiling scientific reporting documentation: Resolution of the Bureau of the Department of Historical and Philological Sciences of the Russian Academy of Sciences of November 27, 2013 N 85 // Posted on the official website of the Institute of Archeology of the Russian Academy of Sciences. URL: http://www.archaeolog.ru (date of access - 06/07/2016).
13. Letter of the Ministry of Culture of the Russian Federation dated August 27, 2015 N 280-01-39-GP // Posted on the official website of the Ministry of Culture of the Russian Federation. URL: http://mkrf.ru (accessed 06/07/2016).
14. On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation located on the territory of the Krasnodar Territory: Law of the Krasnodar Territory of July 23, 2015 N 3223-KZ // Official website of the Administration of the Krasnodar Territory. URL: http://admkrai.krasnodar.ru (accessed 06/07/2016).

References (transliterated):

1. Konstitutsiya Rossiiskoi Federatsii. Prinyata vsenarodnym golosovaniem December 12, 1993 (s uchetom popravok, vnesennykh Zakonami Rossiiskoi Federatsii o popravkakh k Konstitutsii Rossiiskoi Federatsii dated December 30, 2008 N 6-FKZ, dated December 30, 2008 N 7-FKZ, dated February 5, 2014 N 2-FKZ i ot 21 iyulya 2014 g. N 11-FKZ) // Rossiiskaya gazeta. Dec. 25, 1993; sobr. zakonodatel "stva Ros. Federatsii. 2014. N 31. St. 4398.
2. Ob ob "" ektakh kul "turnogo naslediya (pamyatnikakh istorii i kul" tury) narodov Rossiiskoi Federatsii: Federal "nyi zakon ot 25 iyunya 2002 goda N 73-FZ (v red. ot 5 aprelya 2016 g. N 95-FZ ) // Sobr. zakonodatel "stva Ros. Federatsii. 2002. No. 26. St. 2519; 2016. No. 15. St. 2057.
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5. Instruktsiya o poryadke ucheta, obespecheniya sokhrannosti, soderzhaniya, ispol "zovaniya i restavratsii i restavratsii nedvizhimykh pamyatnikov istorii i kul" tury: Prikaz Minkul "tury SSSR dated May 13, 1986 N 203 // Tekst ofitsial" no opublikovan ne byl. Tekst available v SPS "Garant".
6. Ob utverzhdenii Polozheniya o zonakh okhrany ob""ektov kul"turnogo naslediya (pamyatnikov istorii i kul"tury) narodov Rossiiskoi Federatsii: Postanovlenie Pravitel"stva RF ot 26 April 2008 goda N 315 (utratilo silu) // Sobr. zakonodatel" stva Ros. Federatsii. 2008. N 18. St. 2053.
7. O zemlyakh nedvizhimykh ob ""ektov kul" turnogo naslediya (pamyatnikov istorii i kul "tury) regional" nogo i mestnogo znacheniya, raspolozhennykh na territorii Krasnodarskogo kraya, i zonakhikh okhrany: Zakon Krasnodarskogo kraya ot 6 iyunya 2002-goda N 4 KZ (utratil silu) // Kubanskie novosti, June 19, 2002, N 118 - 119.
8. O vnesenii izmenenii v Federal "nyi zakon "Ob ob" "ektakh kul" turnogo naslediya (pamyatnikakh istorii i kul "tury) narodov Rossiiskoi Federatsii" i stat "yu 15 Federal" nogo zakona "O gosudarstvennom kadastre nedvizhimosti": Federal" nyi zakon dated April 5, 2016 goda N 95-FZ // Sobr. zakonodatel "stva Ros. Federatsii. 2016. N 15. St. 2057.
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12. Polozhenie o poryadke provedeniya arkheologicheskikh polevykh rabot i sostavleniya nauchnoi otchetnoi dokumentatsii: Postanovlenie Byuro otdeleniya istoriko-filologicheskikh nauk Rossiiskoi akademii nauk ot 11/27/2013 N 85 // Razmeshcheno na ofitsial" URL www RAN. .archaeolog.ru (data obrashcheniya - 06/07/2016).
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14. Ob ob ""ektakh kul" turnogo naslediya (pamyatnikakh istorii i kul" tury) narodov Rossiiskoi Federatsii, raspolozhennykh na territorii Krasnodarskogo kraya: Zakon Krasnodarskogo kraya ot 23 iyulya 2015 goda N 3223-KZ // Ofitsial "nyi sait administratsii Krasya URL: http://admkrai.krasnodar.ru (data obrashcheniya - 06/07/2016).