About the smuggling of cultural property
ARTinvestment.RU   16 июля 2008

Supreme Court clarified the issues of qualifications of the smuggling, including on the responsibility for the illegal movement across borders of cultural values. New Publication ARTinvestment.RU under the heading «Act for collector»

Supreme Court clarified the issues of qualifications of the smuggling, including on the responsibility for the illegal movement across borders of cultural values.

Resolution number 6 on 27.05.08 Plenum of the RF Armed Forces, in particular, to distinguish between criminal and administrative offenses. Russian Armed Forces recalled that unlike the law in the area of customs, for which the responsibility of the Administrative Code of the Russian Federation, the criminal liability under Art. 188 Criminal Code is:

• with the illegal movement across the customs border of the Russian Federation of goods or other items in large quantities (more than 250 thousand rubles). In determining the amount of contraband pravoprimenitelyam ordered to proceed from the state controlled prices for goods or mount it on the basis of the actual (market) value of the goods at the time of the crime. If such information on the price of goods does not, its value can be set based on expert opinion;
• if the illegal movement of goods or other items carried in addition to or with concealment from customs control or with the fraudulent use of documents, means of customs identification or involve nedeklarirovaniem or inaccurate declaration;
• in the illicit movement of cultural property against which the movement of special rules, regardless of their value or quantity. It is important to the movement of cultural property took place in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification, or was associated with nedeklarirovaniem or inaccurate declaration.

Under movement in addition to customs control should be understood as any intentional act on the import /export of goods and other items outside of checkpoints across the state border of Russia, outside the locations of offices, customs, whatever the time of their or work without permission of the customs authority, if an international treaty to Russia, or federal law does not provide free movement of goods without customs control.

concealment from customs control - that any action designed to impede the discovery of the goods or to conceal their true nature, quantity. For example, when under the guise of a product is imported or when using other caches specially constructed or adapted for smuggling. These caches are located in items like luggage, clothing, and fitted in vehicles. Concealment from customs control is also the concealment of contraband in body cavities.

Under fraudulent use of documents or means of customs identification refers to:

• presentation of customs authorities as grounds or conditions for the movement of goods, of deliberately falsified documents or documents obtained by illegal means, or on other goods and other documents that have no legal effect;
• use of false customs seals, stamps, labels, stamps and other means of identification (listed in Art. 83 of the Customs Code ) or authentic means of identification belonging to other products.

Nedeklarirovanie - if the declaration of willful undeclared (eg, customs declaration) information necessary to decide whether to release the goods subject to declaration and transport facilities, placing them under the customs regime chosen, calculating and levying of customs duties.

false declaration - a declaration of false information about goods and vehicles, the customs regime, etc.

Consider a criminal case brought by 2 of Art. 188 Criminal Code in respect of the citizen, who has stated in the Declaration moved from Russia to Ukraine ecclesiastical items, medals XIX - XX centuries and coins XVIII - XX centuries. According to the sentence the district court that a citizen was found guilty of smuggling, convicted, and cultural treasures were confiscated and turned to the state.

cassation found no reason to cancel or change the sentence. In the supervisory complaint convict asked to cancel court decisions, arguing that his actions were not criminal, because, first, limiting the export of cultural property refers only to objects created by more than a hundred years ago, and, secondly, the value of exported goods should not exceed 10 thousand dollars, and to conclude examination of the historical value of items carried by them does not exceed U.S. $ 500. Supervising authorities rejected these arguments, stating that the monetary valuation of illegally moving objects is important when the responsibility for Part 1, Article. 188 Criminal Code, while the citizen was «sentenced to 2 of Art. 188 Criminal Code - for smuggling of cultural values that do not require evaluation for which the legislator has introduced a special procedure for movement with respect to their quantitative and qualitative indicators » ¹ .

But the verdict was all the same changes. In the case there was no information as to the sentence was not indicated that cultural property seized from the convicted, are instrumentalities of crime and were obtained by criminal means. The Bureau of Probation oblsuda decided to return cultural property as not subject to forfeiture.

Separately, the Supreme Council considered the issues of trafficking in cultural property, for which special rules are transported across the customs border of the Russian Federation. The Court emphasized that those are the only movable objects of artistic, historical and archaeological heritage of the peoples of Russia, referred to the Law on Export and Import of Cultural Property. It also included, and cultural values that are not subject to removal. Their list of installed art. 9 of the Act.

In the cases of smuggling of cultural property to the courts ordered to keep in mind that the reason for the badge of these values across the customs border of the Russian Federation is a certificate issued by a decision of the authorized federal body. The question of supplies of goods or other items illegally transported across the customs border, the category of cultural property should be subject to expert opinion and in accordance with federal law for the protection of cultural heritage sites and monitoring their import /export. It should also be taken into account that claimed to export, temporary export, as well as the return after a temporary export of cultural property are subject to mandatory review. This examination should be carried out by specialists of museums, archives, libraries, restoration and research organizations and other professionals authorized to implement such activities in accordance with the Regulations on the conduct of examination and monitoring of the export of cultural property.

Russian Armed Forces recalled that the meaning of art. 5 of the Law on Export and Import of Cultural Property to allow export of such values (movement of any person for any purpose through the customs border with the obligation to return import to the deadline). Dereliction of duty to return to the territory of the Russian cultural values that constitute the artistic, historical and archaeological heritage of the peoples of Russia and foreign countries, smuggling is not (because cultural values are exported legally), but other forms of crime under Art. 190 Criminal Code.

Elena Pokidova, Attorney

Source: ARTinvestment.RU

¹ Resolution of the Presidium of the Kursk regional court on 07.02.07. Return