The Interview: Alexey Kovalev – archaeologist, member of the St. Petersburg Legislative Assembly
|Kovalev, Alexey Anatolyevich|
Kovalev, Alexey Anatolyevich – research associate of the Russian Academy of Science, the Institute of Archaeology, Russian Academy of Science, member of the St. Petersburg Legislative Assembly, the vice-president of the Scientific committee on Archaeological Heritage of the National Committee ICOMOS of Russia – talks about Russian legislation on the protection of archaeological heritage. Alexey Anatolyevich was a member of the working group, which drafted Federal Law No. 245 “On the amendments in the legislative acts of the Russian Federation on combating illicit activity in archaeology”.
Global Legislation on the Protection of Cultural Heritage
Protection of archaeological heritage has been in the centre of international attention for decades. UNESCO and the Council of Europe have accepted international acts covering various aspects of protecting archaeological heritage:
- Rules for archaeological fieldwork and curbing illicit archaeological excavations;
- Protection of archaeological monuments in the planning stages of land development, rescue archaeology;
- Circulation of archaeological artefacts and their trafficking across the state border;
- Preservation of archaeological artefacts in museums, turning archaeological sites into museums;
- Learning, education and international cooperation.
Russian Federation must observe following international conventions:
- Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
- European Convention on the Protection of the Archaeological Heritage. 1969. (until 2011).
- Convention Concerning the Protection of the World Cultural and Natural Heritage. 1972.
- European Convention on the Protection of the Archaeological Heritage (Revised). 1992. (Valetta Treaty) (since 2011).
In addition to the above Russia must take into consideration the following recommendations of UNESCO and the Committee of Ministers of the Council of Europe:
- Recommendation on International Principles Applicable to Archaeological Excavations. 1956.
- Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private works. 1968.
- Recommendation concerning the protection and enhancement of the archaeological heritage in the context of town and country planning operations R (89) 5, 13/04/1989, Council of Europe, Committee of Ministers.
- Recommendation No R (96) 6 on the protection of the cultural heritage against unlawful acts.
Development of Russian Legislation on the Protection of Archaeological Heritage
Modern Russian legislation has been modified in accordance with its international obligations and national interests. In 2002, the federal law “On objects of cultural heritage of the peoples of the Russian Federation” was adopted. According to this law, all archaeological sites are by definition (i.e. proactively) protected by the State as cultural heritage sites of federal importance. Such sites are declared State property and are exempt from privatisation. Archaeological monuments are not subject to private property rights and belong to the State but lands containing archaeological sites can belong to different subjects, which means the owner of the land may not own an archaeological site. Therefore, under this law, it is compulsory to conduct archaeological research and rescue excavations on lands under development the lands to be economically explored at the expense of the developer.
While preparing the draft of this federal law, we tried to take the best from the European experience (I was the main author in the conception of this law; in 1996 and 1997 the St. Petersburg Legislative Assembly introduced the draft twice to the State Duma). The definition of an archaeological site in this law was formulated in compliance with the European Convention on the Protection of the Archaeological Heritage. Also, the regulations on preventive protection of antiquities used in the law had been in effect for many centuries, for example in Sweden and Italy. Many countries with particularly valuable archaeological heritage regardless of land property rights declared archaeological sites State property in the XXth century. The requirement for compulsory rescue archaeological research before any development or excavation operations at the expense of the developer has become an international standard.
At that time, our legislation had a serious loophole. Under federal law No 73, a special legal regime was granted to archaeological sites only, and it was different from the legislation of many other countries. Moveable archaeological objects were protected only as part of an archaeological site or if they were part of the museum collection. In my opinion, this loophole was the main reason for the unanticipated scale of predatory excavations. The looting of archaeological sites is primarily driven by the buyer. If a buyer can make an archaeological artefact private property and resell it at a profit, he will try to find a seller with the right artefact. If an archaeological find is protected by the State and belongs to the State only in case that this find is part of an archaeological site, an antiquity looter (in Russian slang literally “black digger”) may sell an archaeological find to an antiquity dealer without the public’s knowledge. It was practically impossible to bring an archaeological find back to State ownership. It was almost unimaginable to prove the act of looting of an archaeological site by an individual and particularly to find out the origin of an archaeological find due to the vast territory of our country and the lamentable state of law enforcement.
The general public, academics, and law enforcement authorities then sounded the alarm, which resulted in the nationwide Russian movement “Amator”. It demanded the Russian Government take urgent measures to eliminate the “black market” of antiquities. The Institute of Archaeology of the Russian Academy of Science organised a series of conferences and round table discussions on combatting the activity of looters (“black diggers”). The problem was also discussed at the Public Chamber of the Russian Federation. The Federal Security Service (FSB) noticed a steep rise in the illicit export of antiquities from Russia and suggested to amend the Criminal Code in effect at that time.
New Russian Legislation on the Protection of Archaeological Heritage
As a result of the public’s and academics’ efforts, the Valetta Treaty was ratified in 2011. It contained clear requirements on how to protect archaeological heritage from illicit activity. In 2012, President V.V. Putin instructed the Russian Government to draft legislation on combatting illicit activity in archaeology. The Ministry of Culture of Russia formed a working group with representatives of all concerned bodies and establishments to prepare a draft of this law. After the draft law was introduced to the State Duma, this working group, practically with the same members, finalised the text of the draft legislation taking into account all comments and suggestions. In the summer of 2013, federal law No 245 was finally adopted. It contained amendments and supplements to the principal norms of the federal legislation, such as the federal law “On objects of cultural heritage”, the Civil Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Administrative Offences of the Russian Federation, the federal law “On export and import of cultural property”.
In my opinion, the complex nature of this law allows to ensure effective measures on combatting illicit archaeological research and excavations, as well as the illicit circulation of antiquities and particularly the trafficking of antiquities outside Russia. When drafting this law, the working group used the requirements and terms of the Valetta Treaty as their guideline. They also considered the universally recognised principles of international law and the experience of other states, while at the same time taking into account Russian specifics.
It is important that federal law No 245 introduced the term “archaeological heritage” in compliance with the Valetta Treaty. This term emphasises the importance of information collected from an archaeological find. An archaeological object is fundamentally significant as a unique and finite source of information about the past, rather than an object of monetary or artistic value. An archaeological object carries information about human history, which may be collected only by scientific research of archaeological artefacts in the context of the history of ancient world. That is why it is impossible to clearly define whether a given object is archaeological. An archaeological assessment is required for this purpose. Our (Russian) definition is not much different from those adopted in other countries. For example, Spanish legislation (Law 16/1985 dated 25 June) defines archaeological property or Spanish Historical Heritage as “movable or immovable property of a historical nature that can be studied using archaeological methodology ... forms part of the Spanish Historical Heritage” (Art. 40).
Starting from 2013, all movable archaeological objects stored in the ground, on the ground and underwater have been declared by law as State property (regardless of their registration, origin and relation to the known archaeological sites). They are not covered by the civil-legal definition of treasure, and therefore must be unconditionally returned to the state bodies under threat of prosecution.
Domestic Legislation on the protection of Archaeological Heritage around the World
Similar measures exist in many other European countries, such as in Italy, Greece, Cyprus, Croatia, Bulgaria, Poland etc., as well as Latin America and the Middle East. The Italian Code of the Cultural and Landscape Heritage (no. 42 of 22 January 2004) states: «The things indicated in article 10, found underground or in sea beds by whomsoever and howsoever, shall belong to the State and, depending on whether they be immovable or movable, shall become part of government property or of its inalienable assets, pursuant to articles 822 and 826 of the civil code» (Art. 91).
The legislations of the Arab world (for example Jordan) indicates further: “The ownership of the land will not entitle the landlord to own the antiquities present on its surface or in its subsurface or dispose thereof, nor shall it entitle him to prospect for antiquities therein” (Art.5).
In the legislations of some countries, a certain time period defines whether an object may be considered archaeological. In Latin America, this is the period before the year of Independence; in Greece, this is the time before the year of the Fall of Constantinople; in the Arab world, an object aged more than two hundred years is considered an antiquity, and in other countries like in Russia such a period does not exist.
The legislation, which presumes that archaeological finds belong to the State, has not been adopted in all countries around the world. In countries where the civil-legal system is based on common law, archaeological objects and sites on private lands belong to the owners of the land. Except for some Pariah countries like the UK, all other countries prohibit independent searches for antiquities and especially independent archaeological excavations on private lands under threat of heavy fines and criminal prosecution. The market of antiquities is strictly controlled. For example, in the Netherlands all antiquity deals pass a special registration procedure. The territory of the Netherlands is extremely well explored, all visible sites are registered and any excavation work without preliminary rescue archaeological research is impossible. Under such conditions, the right of private ownership of certain archaeological objects does not cause proliferation of illicit excavations and lootings of archaeological sites, neither can the origin of an archaeological find remain secret. Nevertheless, Russia should take as an example the measures adopted by countries who have suffered greatly from the illicit trade of antiquities, such as Italy, Greece, Egypt, Syria, Israel, Mexico, Guatemala, Peru etc.
If archaeological finds were not declared by law as State property, Russian heritage would follow the Ukrainian example. Ukraine allowed private ownership of archaeological finds. Ukrainian officials state that this rule concerns accidental discoveries only, and because antiquities are supposedly not found during organised purposeful searches, they could be sold to any party. As they say, it is not right to suspect everybody in committing a crime. So what is the result? At the moment, looting in Ukraine (“black digging”) is led by criminal organisations. They have reliable channels for exporting antiquities abroad, and completely control the legal domestic market. Former Ukrainian President Yushchenko publicly exhibited his collection of painted Neolithic pottery of Cucuteni–Trypillia culture, which had without a doubt been found during illegal excavations. International online auctions offer a lot of artefacts of Ukrainian origin, such as antiquities of the Bronze Age, Skythian and Sarmatian culture, Old Russian period etc. And recently even a Scythian stone sculpture was on sale!
In this relation the “UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” emphasises that in order to prevent illicit export and import of archaeological property, it is first and foremost necessary to counter illicit archaeological investigations and curb illicit trafficking of artefacts domestically in every country. It is impossible to curb smuggling only through border and customs control.
Russian Market of Antiquities
Until 2013, many archaeological objects had fallen into the hands of third parties, and in order to grant the right of sale to owners of antiquities, we gave them the opportunity to register such objects in the Museum Fund of the Russian Federation as a non-governmental part of the Museum Fund. Under the law “On the Museum Fund of the Russian Federation and Museums of the Russian Federation”, the selling of registered artefacts is quite possible with only a museum evaluation required. Many collectors use this opportunity to register pieces of decorative art, paintings and other objects in their possession. Such objects may be sold, the State having the pre-emptive right of purchase. As far as I know, no collector of antiquities has taken this opportunity, and as a result no one in Russia may now sell or donate antiquities in their possession. The market of antiquities is now lawfulness in Russia. Regardless of the fact that the state is unable to control the shadow market of antiquities, the actual trafficking of antiquities, as well as the volume of the objects illegally exported abroad, has rapidly fallen. According to the Code of Administrative Offences of the Russian Federation, anybody who posts online ads selling antiquities may be spotted by a mystery shopper, and consequently have all artefacts confiscated and a fine imposed. Similar rules are contained in the Administrative Offenses Code of the Russian Federation in relation to the illicit trade of medicines, amber, arms and wildlife.
The Federal Security Service (FSB), along with the Ministry of Internal Affairs, took the responsibility of implementing a whole package of measures in criminal and administrative legislation in the sphere of archaeology. Specifically, the officers of the Federal Security Service (FSB), who were a part of our working group, formulated the text of the Criminal Code and the Code of Administrative Offences. These two departments may institute criminal and administrative proceedings in the sphere of archaeology. If the Federal Security Service (FSB) and the Ministry of Internal Affairs (MVD) fully implement these legal measures, we shall no longer have illicit trafficking of antiquities and the looting of antiquities will finally stop. It is only a question of law enforcement. We receive messages from various parts of our country that police authorities do not carry out their tasks and dismiss reports from the public and specialists regarding the looting of archaeological sites or the selling of antiquities.
The Use of Metal Detectors in Russia
Besides people in organised crime, we have a lot of poorly educated people who unfortunately obtain metal detectors. Criminal groups use exactly such “simpletons”, who call themselves “amateur archaeologists” or “investigators with detection equipment”, in order to discredit the measures taken by the State to protect Russian archaeological heritage. In the summer 2013, there was a wave of supposedly spontaneous rallies(!) of diggers across the country who demanded to have the opportunity of “leisure archaeology”.
First of all, we need to inform such people that “amateur archaeologists” do not exist - they are all looters and criminals.
Any work, whether conducted on government or private land, for the purpose of finding archaeological objects, is considered archaeological fieldwork by law and cannot be conducted without appropriate permission. Any work targeted in archaeological investigations either on the archaeological site or not considered by law to be archaeological field work and therefore may not be committed without a relevant permission. An individual working in an open field is at a minimum subject to administrative liability and confiscation of their metal detector, and if a cultural stratum is damaged during such work a criminal liability will be applied under federal law No 245. A cultural stratum is a “layer in the earth or under water which contains traces of human activity from more than one hundred years ago, as well as archaeological artefacts”. This definition does not mention that a cultural stratum must be registered as an archaeological site. This means that criminal liability will be applied even if someone damages a cultural stratum of a yet unknown archaeological site during their purposeful search. This idea is not new. It is incorporated into the legislation of countries like Sweden and the Papal States pioneering for the protection of archaeological sites. As early as 1666, the Royal decree on the protection of archaeological sites was adopted in Sweden. Even then, big fines were imposed for any attempts to damage known or unknown archaeological objects despite the fact that in Sweden, archaeological sites on private land belong to the owner of the land! It is the same in Norway, Denmark and Finland.
The Valetta Treaty also emphasises the restrictive use of detection equipment. It requires “to subject to specific prior authorisation, whenever foreseen by the domestic law of the State, the use of metal detectors and any other detection equipment or process for archaeological investigation” (Art 3, par. iii). In the last 20 years, most of the countries in the world have adopted laws against the free use of metal detectors, sounders and GPRs. The UK and some US states look very poor in this regard. Looters like to refer to England, where even to this day a corresponding law is called The Treasure Act. According to this Act, antiquities are valued in terms of gemstone and precious metal content. This country is stuck in the 17th century and may not be used as an example for a civilised human. In the neighbouring France, for example, the Heritage Code under Art. L542-1 states: “none may use devices for the detection of metal objects, for researching of monuments and objects which may be of interest to prehistory, history, art or archaeology, without having previously obtained official authorization according to the skills of the applicant, as well as the nature and modalities of research” (translated from French by Thomas Lecroere).
An individual violating this provision is subject to a big fine and confiscation of the detection equipment.
Occasionally, looters raise the question of licensing work with metal detectors. This is a ploy intended to replace a permission for actual archaeological work. We must not allow the existence of this licensing system at the same time as the permissions on actual archaeological work. The permissions on archaeological work are granted on the specific territory or archaeological site for a specific season. After the research work is complete, it is necessary to provide a report and give the finds to a museum. Without this procedure, a subsequent permission would not be granted. Licensing metal detectors would mean that the owner of a metal detector may do anything across the whole country. It would be reasonable to prohibit the free sale of metal detectors. The system for metal detector registration could be established similarly to the system of registration for gun-ownership. However, such a system has not been developed. The uncontrolled sale of metal detectors certainly encourages crimes and offences. Besides that, we should keep in mind that companies selling metal detectors boost demand for their products, thereby directly or indirectly financing communities of looters. It is necessary to understand that looter’s actions are based on the commercial interests of these companies. If nobody promotes work with metal detectors, the demand for them will fall and those companies will in turn loose business.
Rescue Archaeology in Russia
It is important to emphasise that the fight against looters is just one aspect of the universal world policy on the protection of archaeological heritage. Large-scale construction works is another serious threat to the protection of cultural heritage with extensive excavations totally destroying cultural strata. Preventive rescue archaeological work must be carried out before the start of every construction operation. Big developers resist rescue research conducted at their expense. Under federal law No 73 of 2002, archaeological assessments were mandatory for land plots, which were not documented by the authorities as free from culturally significant artefacts. However, in 2007 this procedure was excluded from the law by development lobbyists. It was only in 2014 that this norm was introduced back into the legislation as a result of actions undertaken by the archaeological society, authorities protecting heritage and other enthusiasts. I would like to give a recent example illustrating the importance of archaeological assessment. In recent years, a lot of archaeological monuments have been discovered in areas under development in the Republic of Crimea. At the moment, archaeological work is being conducted in Crimea at sites that had not been discovered until thorough archaeological research. And this is considering that Crimea is quite well explored as archaeologists have been exploring it for more than 150 years! During archaeological research preceding building operations, new archaeological monuments have been discovered. They included multi-layer debris of settlements, burial grounds, and antique tombs. Also a unique settlement of H. neanderthalensis was found. We greatly expanded our knowledge about this territory during this research. If the rescue works had not been organised as a part of the development expenses, all monuments would have been destroyed. Unfortunately, such results are hardly achievable with developers in other regions. The territory of our country is explored much less than that of other European countries and during the investigation of the areas of future development surprising discoveries may occur.
- Archaeological artefacts (antiquities) – movable objects, the main source of information about which or any informational source about which, regardless of the circumstances of their discovery, are archaeological excavations or finds, including the artefacts discovered as the result of such excavations or finds. Federal law as of 25.06.2002 No. 73 (ed. 29.07.2017) «On the objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation»
- Treasure - buried in the ground or otherwise hidden money or precious objects, the owner of which cannot be established or who has lost ownership rights, ….. In case of discovery of treasure containing the objects regarded as cultural property when the owner cannot be established or who has lost ownership rights...the ownership right is to be transferred to the State... Civil Code of the Russian Federation as of 30.11.1994 No. 51 (ed. 29.07.2017) (amendments came into force 06.08.2017)
- Federal law as of 26.05.1994 No. 54 (ed. 03.07.2016) «On the Museum Fund of the Russian Federation and Museums of the Russian Federation»
- Kovalev A.A. Application of the terms «archaeological object» and «cultural stratum» in law enforcement // Restoration of archaeological heritage: problems and perspectives. Materials of the conference «Combatting illicit archaeological activity», Moscow 9-10 December 2013. - М.: ИА РАН, 2015. – ISBN 978-5-94375-173-8 [in Russian]
- Federal law as of 25.06.2002 No. 73 (ed. 29.07.2017) «On objects of cultural heritage of the peoples of the Russian Federation»
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