The procedure for moving cultural property across the customs border. Cultural property as objects of customs control Customs control over the movement of cultural property
Improving the system of customs regulation of the movement of cultural property by individuals across the customs border Russian Federation
Explanatory note to the thesis
Introduction
2. Analysis modern system customs regulation
movement of cultural property by individuals across the customs border of the Russian Federation
2.1 The procedure for the export and temporary export of cultural property from the territory of the Russian Federation
2.3 Regulation of the movement of cultural property in accordance with international agreements of the EurAsEC
3.1 Problematic issues related to the regulation of the movement of cultural property that arise when applying legislation in practice and ways to solve them
Conclusion
Bibliography
Appendix A
Appendix B
Appendix B
Appendix D
Introduction
Relevance. Preserving cultural heritage and passing it on to future generations is one of the priorities of every country. The state is obliged to preserve cultural values located on its territory, but at the same time should not interfere with free international cultural exchange. An important role in regulating this process on the territory of Russia is assigned to customs authorities, which ensure compliance with legislation regarding control over the procedure for the movement of cultural property across the customs border of the Russian Federation.
According to the Customs Code, the suppression of illicit trafficking in cultural property with its movement outside the Russian Federation is considered one of the main functions of customs authorities. Today, cultural values, as objects of primary attention, are on a par with such particularly dangerous types of smuggling as smuggling of drugs, weapons, radioactive substances, endangered species of animals and plants. One of mandatory conditions increasing the effectiveness of the fight against smuggling is a good knowledge of the subject with which the customs official will have to deal: he must accurately understand what is behind the wording of the concepts “cultural values” and “cultural objects”, be able to distinguish between them and know the corresponding permits documents provided for customs clearance. On the one hand, citizens should not be burdened with unnecessary suspicions and procedures should not be unreasonably slowed down. customs control and registration, on the other hand, it is unacceptable to show professional incompetence and breach of duty, thereby indirectly contributing to the illegal export of cultural property.
When applying legislation in practice, customs officials face many problems. Even a superficial glance at the current legislation on cultural property in the Russian Federation suggests a complete lack of comprehensive systematic approach to rule-making in this area of legal regulation. The provisions of regulatory legal acts, the number of which is constantly growing, are extremely inconsistent and sometimes contradict each other, which creates serious difficulties in their application in practice.
The degree of development of the problem. Legal relations that arise when moving cultural property across the customs border of the Russian Federation are considered by almost all authors who study the procedure for moving goods prohibited or restricted for import or export from the territory of our state. Particular attention should be paid to the analysis of the legal regulation of relations in the field of movement of cultural property in the works of the following authors: V.I. Dyakov, I.V. Dyakov, N.A. Levdanskaya, S.N. Lyapustin, G.P. Shcherbina, M.M. Boguslavsky.
The relevance of the problem under consideration, its practical significance, as well as problems legislative regulation and him practical application, determined the choice of research topic, purpose and main objectives of the thesis.
The object of the study is the system of legal relations that arise in the process of moving cultural property across the customs border of the Russian Federation.
The subject of the study is legislation regulating the movement of cultural property across the customs border of the Russian Federation.
The purpose of the thesis is to develop proposals for improving the legislative framework regulating the movement of cultural property, in particular, to create a project of an interdepartmental information system for monitoring the movement of cultural property.
To achieve the stated goal of the thesis, the following tasks were set:
Define the concept of “cultural values”;
Analyze the current legislation regulating the procedure for the export and import of cultural property;
Consider the procedure for the movement of cultural property established within the Eurasian Economic Community;
Identify problematic issues that arise when applying legislation in practice;
Put forward proposals for improving the legislative framework regulating the procedure for the import and export of cultural property;
Develop an interdepartmental information system to monitor the movement of cultural property.
The theoretical basis of the thesis was scientific works authors considering the procedure for the export and import of cultural property, as well as regulatory and legal acts affecting various areas of legal relations arising during the preservation and movement of objects of cultural heritage, the main of which are: Customs Code of the Russian Federation N 61-FZ of May 28, 2003 (in edition dated November 28, 2009); Law of the Russian Federation No. 4804-1 of April 15, 1993 “On the export and import of cultural property” (with latest changes dated July 17, 2009); Decree of the Government of the Russian Federation No. 322 of April 27, 2001 “On approval of the Regulations on the examination and control of the export of cultural property” (as amended on July 21, 2009), as well as others regulations regulating this area of legal relations.
The scientific novelty of the work is determined by the fact that it attempts to fill the gap that has arisen in legal science by making proposals to improve the legislative framework. To improve customs control and customs clearance, this work has developed and proposed an interdepartmental information system for monitoring the export and import of cultural property.
Theoretical significance. This work provides a comprehensive analysis of the legislation regulating the procedure for the import and export of cultural property, examination, as well as the issuance of permits for the legal movement of these items across the customs border of the Russian Federation by individuals. Based on the analysis, problematic issues arising in connection with the movement of cultural property by individuals across the customs border of the Russian Federation are identified.
The practical significance of the work lies in the development of proposals for improving legislation regulating the procedure for the movement of cultural property by individuals across the customs border of the Russian Federation, as well as in the development of a model of an interdepartmental information system for monitoring the export and import of cultural property.
Structure of the thesis. The thesis consists of an introduction, four chapters, including nine paragraphs, a conclusion, a list of references and four appendices.
1. Cultural property as objects of customs control
Cultural values have always been the object of close attention from people, both different nationalities and different segments of the population, regardless of their level of life, political or social status. For some, these are objects to satisfy their cultural needs, for others, they are a way of existence or a means of making money.
Interest in the problem of preserving cultural values can be considered an indicator of the level of cultural development of the population of any country. Today, developing countries are demanding the return of cultural property, and this issue is being actively discussed international organizations and at international forums. Exchange for the purposes of education, science and culture expands knowledge of human civilization, enriches the cultural life of all peoples and creates mutual respect and understanding between countries. It is important to note that cultural values, being one of the main elements of civilization and culture of peoples, acquire their true value only if their origin and history are precisely known.
For the multinational people of Russia, cultural heritage sites are of unique value, and are also an integral part of the world cultural heritage. Article 44 of the Constitution of the Russian Federation proclaims not only the right of every citizen to access cultural values, but also enshrines the duty of every citizen to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments.
1.1 The concept of “cultural values” and its legal characteristics
International law and Russian legislation provide several definitions of the concept of “cultural property”. The definition of “cultural property” was first formulated in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. According to this Convention, the following items are considered cultural property, regardless of their origin and owner:
a) “movable or immovable values that are of great importance for the cultural heritage of each people, such as architectural, artistic or historical monuments, religious or secular, archaeological sites, architectural ensembles, which as such are of historical or artistic interest, works of art, manuscripts, books, other objects of artistic, historical or archaeological significance, as well as scientific collections or important collections of books, archival materials or reproductions of property specified above;
b) buildings whose main and actual purpose is the preservation or display of movable cultural property referred to in paragraph (a), such as museums, large libraries, archive storage facilities, as well as shelters intended for the preservation in the event of armed conflict of movable cultural property referred to in point (a);
c) centers in which there is a significant amount of cultural property specified in points (a) and (b), the so-called centers of concentration of cultural property."
Along with the 1954 Convention, a broad definition of the concept of “cultural property” was given in the 1964 UNESCO Recommendation “On measures to prohibit and prevent the illicit export, import and transfer of ownership of cultural property.” From the point of view of this Recommendation, “cultural property is considered to be movable and immovable property of great importance for the cultural heritage of each country, such as works of art and architecture, manuscripts, books and other objects of interest from the point of view of art, history or archeology , ethnological documents, typical specimens of flora and fauna, scientific collections and important collections of books and archival documents, including music archives." It is significant that it is in this Recommendation that for the first time the division of cultural property into two categories is indicated: movable and immovable.
The division of things into two categories, namely immovable and movable, was known in Roman law and in the Middle Ages. In relation to movable property, the well-known formula “movable property follows the person” (“mobilia personamsequuntur”) was applied. Exclusively movable cultural property became the subject of regulation of the 1970 UNESCO Convention "On the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property." According to Article 1 of the Convention: “for the purposes of this Convention, cultural property is property of a religious or secular nature which is considered by each State to be of archaeological, prehistoric, historical, literary, artistic and scientific significance.” It should be noted that the meaning of this definition for archaeology, prehistory, history, literature, and science is within the competence of the state party to the Convention. It follows that it is within the competence of each state to determine the list of categories of cultural property.
In Russian legislation, for the first time, the concept of “cultural values” was enshrined in the Law of the Russian Federation of October 9, 1992 No. 3612-1 “Fundamentals of the legislation of the Russian Federation on culture” and was formulated as “moral and aesthetic ideals, norms and patterns of behavior, languages, dialects and dialects, national traditions and customs, historical toponyms, folklore, artistic crafts and crafts, works of culture and art, results and methods of scientific research of cultural activities, buildings, structures, objects and technologies that are unique in historical and cultural terms have historical and cultural significance territories and objects."
In 1988, the Union of Soviet Socialist Republics (hereinafter referred to as the USSR) ratified the 1970 UNESCO Convention and, in accordance with it, the Law of the Russian Federation “On the Export and Import of Cultural Property” (hereinafter referred to as the Law) was adopted, which more clearly distinguishes the categories of items which relate to cultural values. In accordance with this law, cultural values are understood as “movable objects of the material world located on the territory of the Russian Federation, namely:
Cultural assets created individuals or groups of persons who are citizens of the Russian Federation;
Cultural values that are important for the Russian Federation and created on the territory of the Russian Federation by foreign citizens and stateless persons living on the territory of the Russian Federation;
Cultural values discovered on the territory of the Russian Federation;
Cultural values acquired by archaeological, ethnological and natural scientific expeditions with the consent of the competent authorities of the country where these values originate;
Cultural property acquired through voluntary exchanges;
Cultural property received as a gift or lawfully acquired with the consent of the competent authorities of the country from which the property originates."
The “objects of the material world” mentioned above are listed in another article of the Law, in accordance with which “cultural values include the following categories of objects:
a) historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and work of outstanding personalities (state, political, public figures, thinkers, scientists, literature, art);
b) objects and their fragments obtained as a result of archaeological excavations;
c) artistic values, including:
1) entire paintings and drawings self made on any basis and from any materials;
2) original sculptural works from any materials, including reliefs;
3) original artistic compositions and installations from any materials;
4) artistically designed religious objects, in particular icons;
5) engravings, prints, lithographs and their original printed forms;
6) works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
7) products of traditional folk arts and crafts;
8) components and fragments of architectural, historical, artistic monuments and monuments of monumental art;
d) ancient books, publications of special interest (historical, artistic, scientific and literary), separately or in collections;
e) rare manuscripts and documentary monuments;
f) archives, including photo, phono, film, video archives;
g) unique and rare musical instruments;
h) postage stamps, other philatelic materials, separately or in collections;
i) ancient coins, orders, medals, seals and other collectibles;
j) rare collections and specimens of flora and fauna, items of interest to such branches of science as mineralogy, anatomy and paleontology;
k) other movable items, including copies that have historical, artistic, scientific or other cultural significance, as well as those taken under state protection as historical and cultural monuments.”
Thus, this Law exhaustively stipulates almost all items that may directly or indirectly relate to cultural values.
Despite the fact that international law and Russian legislation provide several definitions of the concept of “cultural values,” the general specifics remain unchanged: cultural heritage forms a set of material and spiritual cultural values of other eras that are subject to preservation, revaluation and use of existing achievements. The concept of “cultural values” covers both material objects and spiritual human activity. Cultural value may have means of labor and its material products, works of spiritual creativity, philosophical ideas, scientific achievements, traditions, moral and legal norms etc.
The variety of terms used is explained by the complexity that arises when using concepts generally accepted in relation to cultural values in relation to customs legislation. This is the line beyond which a unique creation expressing the creativity of a people, its language, customs, religion, etc., becomes, from the point of view of the letter of the law, a commodity moved across the customs border.
On January 1, 2010, on the basis of the Decision of the Interstate Council of the Eurasian Economic Community No. 18 of November 27, 2009 “On the unified customs and tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation,” the Unified Commodity Nomenclature for Foreign Economic Activity (hereinafter referred to as ETNVED) came into force ), in which, as in the Russian Tax Code for Foreign Economic Activity that preceded it, a separate section is allocated to cultural values, which includes group 97 “Works of art, collectibles and antiques.” The legislator proposes a classification of cultural property into six commodity items, a detailed list of which is presented in Appendix A. However, it should be noted that such goods are classified in other commodity items of the Unified Tax Code of Foreign Economic Activity if they do not meet the conditions arising from the texts of the notes or commodity items of this group. Articles classified in headings 9701 to 9705 remain in those headings even if they are more than 100 years old.
According to the Customs Code of the Russian Federation, the suppression of illicit trafficking in cultural property with its movement outside the Russian Federation is considered one of the main functions of customs authorities. Cultural values, as objects of primary attention, are on a par with such particularly dangerous types of smuggling as smuggling of drugs, weapons, radioactive substances, endangered species of animals and plants. The degree of responsibility for committing this type of crime is determined by the Criminal Code of the Russian Federation: “punishable by imprisonment for a term of 5 to 12 years with a fine in the amount of one million rubles or other income of the convicted person for a period of up to five years or without it.” Experts have found that the detection rate of smuggling is 6-10%. It is generally accepted that this applies to all types of smuggling. However, the specificity of cultural property as an object of illegal movement allows in some regions an even lower detection threshold: for the Far East, the figure obtained by the calculation method does not reach below 1%.
One of the prerequisites for increasing the effectiveness of the fight against smuggling is a good knowledge of the nature of the phenomenon that we have to deal with. The customs officer must understand exactly what is behind the formulation of the concept of “cultural values”. On the one hand, it is impossible to burden citizens with unnecessary suspicions and unreasonably slow down customs control and clearance procedures; on the other hand, it is unacceptable to display professional incompetence and breach of duty, thereby indirectly contributing to the illegal export of cultural property.
1.2 History of the formation and development of legislation on the protection of cultural property in Russia
The problem of legal protection of cultural property in Russia has deep historical roots. Attempts to regulate this area public relations can be traced back to the 15th century in the Pskov Judgment Charter, which established liability in the form of the death penalty for a church thief. Pursuing the main goal of protecting church property from criminal attacks, the Pskov Judgment Charter unwittingly contributed to the preservation of cultural values concentrated in monasteries and churches.
During the 18th century, there was an awareness of the importance of cultural heritage and the problems of its protection. In 1726, the first historical and art museum was created in Russia - the Armory Chamber. The emergence of historical science, the establishment of archaeological societies and the beginning of their excavations forced us to pay great attention to the material evidence of the past.
Attempts were made to regulate relations related to cultural values in the 19th century. As a result of the reform of state power under Alexander I, issues of cultural heritage protection were assigned to the competence of the Ministry of Internal Affairs of the Russian Empire, and in 1859 the Imperial Archaeological Commission was created under the Ministry of the Imperial Household.
At this stage of development of legislative thought, considerable attention of legal scholars was paid to determining the specific range of structures and things that should be classified as historical monuments. Simultaneously with the recognition of their scientific, artistic value and social significance, measures were developed aimed at ensuring the safety of cultural values, protecting them from accidental or deliberate destruction. At first, they tried to solve the problem by relying on legal regulation through departmental instructions. An example of this is the circular letter of 1826 and the decrees of the Holy Synod of 1842, as well as a special article of the Construction Regulations of 1857, which prohibited the demolition of ancient buildings. However, the adoption of these documents could not constructively change the existing provisions, which forced specialists to begin developing a new approach to the problem of protecting cultural property, the main principles of which were: the adoption of a law on the protection of monuments, the establishment of relevant government bodies, and the creation of a Code of Monuments. At the same time, there was a search for a temporary criterion for assessing monuments, i.e. establishing their minimum age. At the beginning of the 20th century, proposals were made to establish a more flexible criterion: 100 years from the moment of its creation for an ancient monument and 50 years for a monument of art. In October 1911, the State Duma considered the bill “On the Protection of Antiquities.” However, it was not possible to finalize the project due to the revolutionary events of 1917.
The change of state power was marked by the adoption of several documents at once, indicating increased attention on the part of the new leadership of the country to the issues of preserving cultural values. Thus, in November 1917, the Petrograd Council of Workers' and Peasants' Deputies adopted an "Appeal on the need to preserve cultural heritage." A year later, in 1918, such fundamental documents as the Decree of the Council of People's Commissars "On Monuments of the Republic", "On the Prohibition of the Export and Sale Abroad of Objects of Special Artistic and Historical Significance" and the Decree of the Council of People's Commissars "On Registration, Admission to registration and protection of monuments of art and antiquities in the possession of private individuals, societies and institutions."
On April 11, 1983, the People's Commissariat for Foreign Affairs sent a dispatch to all embassies in Moscow with the following content: “The Protocol Department of the People's Commissariat for Foreign Affairs has the honor to draw the attention of members of the diplomatic corps to the following: The Soviet government notes a significant leakage abroad of antiques and art objects of artistic value for the Soviet Union. Therefore, the Main Customs Administration has now been ordered to issue permits for the export of such things in strict accordance with the instruction of the Main Customs Administration No. 120 dated September 28, 1928, a copy is attached...”
The result of the “pre-perestroika” period of formation of domestic legislation on culture and cultural values was the adoption of numerous regulatory documents, which formed the legal basis for the legislation of the USSR and union republics on the protection of cultural property, which included the Law of the RSFSR of December 15, 1978 “On the protection and use of historical and cultural monuments.”
To date, the Russian Federation has adopted more than 15 normative and legal acts regulating the movement of cultural property across the customs border of the Russian Federation, the main one of which is the repeatedly mentioned Law of the Russian Federation of April 15, 1993 No. 4804-1 “On the export and import of cultural property” . The law is aimed at protecting cultural property from illegal export, import and transfer of ownership, and is also intended to promote the development of international cultural cooperation. This Law determines the creation of the Federal Service for the Preservation of Cultural Property, which is currently the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (Rosokhrankultura). The structure of this Federal Service also includes 13 territorial departments by district. These structures are endowed with the right to make decisions when exporting cultural property and the right to conduct special registration when importing cultural property.
Thus, the issues of preserving the cultural heritage of our country have been relevant for many centuries, regardless of the political regimes and ideologies that prevailed in a particular historical period in Russia.
1.3 World practice regulation of the movement of cultural property across the customs border
As noted above, one of the tasks of any state is to ensure the preservation of the values of national culture. Naturally, cultural values created in the process of creativity can and are in circulation, including the ability to move across the borders of many countries around the world, both for the purpose of exhibition and sale. However, not all cultural property is transported legally.
Most affected by criminal attacks on cultural property among countries Western Europe Italy. This is due to the fact that over 60 percent of all works of art are located in Italy. Every year in this country there are about eighteen thousand thefts of paintings, statues, and archaeological valuables. Italian mafia organizations are active in the art market. It was they who led to the devastation of the resources of ancient Italian art.
The reasons mentioned above explain the adoption by Italy, as well as the UK, Germany, India, Mexico and a number of other countries of laws on the export of cultural monuments that establish criminal liability for violating them. The purpose of the laws is to prevent the export of valuable cultural objects from the country concerned. They establish special export rules for cultural property, which are characterized by detailed regulation and certain rigidity.
In these countries, the export of cultural property is carried out mainly under a special permit (license), but the conditions for obtaining licenses are different in all states. For example, Mexico does not issue permits for the export of archaeological sites. In Indonesia, export permits are only issued for registered monuments. In Great Britain, the following rules are established: a license is required to export from the country manuscripts of any purpose, documents, archives, photographs and negatives made more than seventy years ago. The license is provided for antiquities of any purpose dating back at least a hundred years (including works of art), if their value is less than 4 thousand pounds sterling. There are exceptions to this rule. The export of cultural property for the purposes of scientific research, exchange and display at exhibitions is allowed.
In Germany, according to the Federal Law of August 6, 1955 “On the Protection of German Cultural Property from Export,” a special permit is provided for the export of cultural property abroad. Such permission is issued by the Ministry of Culture or the Ministry of Higher and Secondary Education of Germany. If the export of cultural property from Germany would cause serious damage to national heritage or science, an export permit will not be issued. Exporting protected items from Germany abroad without permission is punishable by imprisonment or a fine. At the same time, things are confiscated, regardless of whether they are the property of the perpetrator or third parties. All works of art and other cultural property (including archival materials), the removal of which would be considered an irreparable loss to the German cultural heritage, must be included in the List of Cultural Property of National Heritage. Permission to export such items is issued on the basis of the conclusion of an expert commission, otherwise such valuables cannot be exported.
In Poland, taking a monument abroad without permission or failing to return it within the prescribed period is punishable by imprisonment and a fine. Selling or intermediary in the sale of monuments for the purpose of exporting them abroad is also punishable by imprisonment and a fine.
In France, back in 1975, the Central Bureau for Combating theft of Works and Objects of Art was created within the French Ministry of Internal Affairs. It is entrusted with several main tasks: coordination of activities aimed at preventing thefts; coordination of activities aimed at combating thefts, as well as concealment and purchase of stolen items; centralization of relevant information; special training for the entire country. Structurally, the Central Bureau is part of Interpol in France, which gives it the opportunity to have access to all international information related to works of art and cultural property in general. Like other foreign similar services, the Central Bureau places the main emphasis on the prevention of these crimes.
In legislative acts on cultural values different countries There are many similarities; however, some differences remain between the countries from which cultural property is actively exported, primarily illegally, and the states into which they are imported. Let us dwell on the legal regulation that exists in some of these states, both the first and second groups.
The countries of the first group include Italy, Greece, Latin American countries, and a number of countries in Asia and Africa. Thus, in Mexico, Brazil, Argentina, and Jordan, a ban has been imposed on the export of certain categories of cultural property. A feature of Italian legislation is the free re-export of items for five years after their import, which is often used for fraudulent transactions with valuables through the initial import of counterfeits and the subsequent export of originals from Italy on an allegedly legal basis.
The second group includes countries such as the United States of America (hereinafter referred to as the USA) and Japan. There is no doubt that one of the countries into which antiques and archaeological finds from all over the world are actively imported is the United States. Every year, tens of thousands of works of art and antiquities cross the border of this country. Legal regulation of the circulation of cultural property is carried out in the United States both through the adoption of legislative acts and by issuing court decisions(precedents) recognized as sources of law. Another country actively importing cultural property is Japan, where the Law on the Protection of Cultural Property was adopted in 1950. According to this Law, only items that are part of the “national treasure” or “important cultural property” are subject to export controls.
A comparative examination of the laws of many states shows that the list of cultural values largely coincides. However, at the same time, there are differences, the presence of which reflects historical characteristics, traditions of national cultures, and the role that the protection of cultural values plays in a particular country. One thing remains unchanged: the government of each country is interested in preserving the country’s cultural heritage on its territory, regardless of the political system, as well as a particular historical period.
1.4 Organs government regulation and control over the export and import of cultural property
Preserving cultural heritage and transferring it to future generations is one of the priorities of every state. Various state authorities, law enforcement and security agencies, public and non-governmental organizations for the protection of cultural heritage take part in the preservation of the cultural heritage of Russia, such as:
Ministry of Culture of the Russian Federation;
Ministry of Internal Affairs of the Russian Federation;
Federal Service for Supervision of Compliance with Legislation in the Field of Protection of Cultural Heritage;
Federal Security Service of the Russian Federation;
Border Service of the Federal Security Service of the Russian Federation;
Federal Customs Service of the Russian Federation and its divisions;
Regional government bodies exercising management in the field of culture of the constituent entities of the Russian Federation;
Municipal bodies exercising management in the field of culture;
Museums, art galleries, archives, libraries, exhibition centers;
Scientific research institutes;
Higher and secondary specialized educational institutions;
Unions of artists and other creative persons, associations of collectors.
The Government of the Russian Federation has established that one of the functions of the Ministry of Culture is the creation of normative and legal acts on the issues of preserving cultural heritage sites, as well as on their state protection. To carry out this function, the Ministry includes the Department of Cultural Heritage and visual arts.
The Ministry of Culture also has jurisdiction over the executive body responsible for the protection of cultural property - the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (hereinafter referred to as Rosokhrankultura). Rosokhrankultura carries out its activities directly and through its territorial bodies in interaction with other federal executive authorities, executive authorities of the constituent entities of the Russian Federation, local government bodies, public associations and other organizations. The powers of Rosokhrankultura and its territorial bodies, in particular, include:
Exercising state control over the export and import of cultural property;
Drawing up a list of cultural property subject to the Law, the export of which is carried out on the basis of certificates for the right to export cultural property from the territory of the Russian Federation;
Making decisions on the possibility of export or temporary export of cultural property;
Issuance of certificates to legal entities and individuals for the right of their export and temporary export;
Registration of cultural property imported and temporarily imported into the territory of the Russian Federation;
Concluding agreements on the return of exported cultural property with persons applying for their temporary export;
Ensuring the examination of cultural property declared for export and temporary export, as well as when they are returned after temporary export.
An important role in regulating this process on the territory of our state is assigned to the Federal Customs Service of the Russian Federation, regional customs departments, customs houses, and customs posts. Customs authorities ensure compliance with legislation regarding control over the procedure for moving cultural property across the customs border of the Russian Federation, while interacting with the Ministry of Culture of the Russian Federation, Rosokhrankultura or its territorial departments for the protection of cultural heritage.
The competence of customs authorities includes the suppression of illegal trafficking of cultural property across the customs border. If necessary, use specialized equipment and special knowledge for customs clearance individual species goods, the Federal Customs Service of Russia has the right to establish certain customs authorities for declaring such goods in order to ensure the effectiveness of control over compliance with the customs legislation of the Russian Federation, in particular this applies to the movement of cultural property.
A separate task of the Federal Customs Service of Russia, represented by the relevant regional customs authorities, in relation to the issue of cultural property is to create " specialized service", carrying out in customs points passage across the state border control over the procedure for the export and import of cultural property. In addition, departments have been created within operational customs to combat particularly dangerous types of smuggling, one of whose tasks is to prevent possible crimes involving the loss of cultural property.
Along with the Ministry of Culture, Rosokhrankultura and the Federal Customs Service of Russia, others are also involved in preserving the country’s cultural heritage government agencies mentioned above. The large number of departments dealing with this issue is determined by the specifics of the object under consideration: the exchange of cultural values for the purposes of education, science and culture expands knowledge about human civilization, enriches the cultural life of all peoples and causes mutual respect and understanding between countries. It is important to note that cultural values, being one of the main elements of civilization and culture of peoples, acquire their true value only if their history and origin are precisely known.
2. Analysis of the modern system of customs regulation of the movement of cultural property by individuals across the customs border of the Russian Federation
All goods transported across the customs border of the Russian Federation are subject to customs clearance and customs control in the manner and under the conditions established by the Customs Code of the Russian Federation, regardless of the form in which they are declared: oral or written. The declarant has the right to independently choose the form of declaration of information about the goods, however, the Federal Customs Service has established a certain list of goods that are subject to mandatory written declaration when moving them by individuals for personal use. Along with products such as narcotic drugs, psychotropic substances, nuclear and radioactive materials, precious metals and stones, cultural values are also subject to mandatory declaration in writing, regardless of whether they are transported in accompanied baggage or travel separately. The need for written declaration of such goods is, first of all, due to the fact that they are included in the lists of goods restricted for import and (or) export established by the Government of the Russian Federation; accordingly, their movement requires various permits issued by the relevant regulatory authorities.
This chapter will conduct detailed analysis the legislative framework of the Russian Federation, as well as international documents regulating legal relations related to the movement of cultural property by individuals across the customs border of Russia. The basic document regulating the procedure for the movement of cultural property is the Law of the Russian Federation dated April 15, 1993, which was repeatedly mentioned in Chapter 1. No. 4804-1 “On the export and import of cultural property” (hereinafter referred to as the Law), in pursuance of which most of the regulatory and legal acts that make up the current legislation on the movement of cultural property have been adopted.
2.1 The procedure for the export and temporary export of cultural property by individuals from the territory of the Russian Federation
The export of cultural property is understood as “the movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of the Russian Federation, without the obligation to re-import it.” Thus, individuals, when traveling across the customs border of the Russian Federation, can export for any purpose cultural assets located on its territory, without the obligation to re-import them, subject to compliance with the requirements and restrictions established by law. One of these restrictions is the list of categories of cultural property, the export of which from the territory of the Russian Federation is prohibited, regardless of the provision of certain permits. Such items include:
- “movable items of historical, artistic, scientific or other cultural value and classified, in accordance with current legislation, as particularly valuable objects of the cultural heritage of the peoples of the Russian Federation, regardless of the time of their creation;
Movable items, regardless of the time of their creation, protected by the state and included in security lists and registers in the manner established by the legislation of the Russian Federation;
Cultural property permanently stored in state and municipal museums, archives, libraries, and other state repositories of cultural property of the Russian Federation. By decision of authorized government bodies, this rule may be extended to other museums, archives, and libraries;
Cultural assets created more than 100 years ago"
A ban on export for other reasons is not allowed, therefore, subject to the provision of a permit, any cultural value that does not fall into the categories of the above items can be freely exported from the territory of the Russian Federation.
The main and only document on the basis of which cultural property is passed through the customs border is the Certificate for the right to export cultural property (hereinafter referred to as the Certificate), issued by the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (hereinafter referred to as Rosokhrankultura) or its territorial organs. The form of the Certificate is established by the Decree of the Government of the Russian Federation dated April 27, 2001. No. 322 “On approval of the Regulations on the examination and control of the export of cultural property” and is given in Appendix 2. Certificates have 8 degrees of protection (at the security level), accounting series and number and are strict reporting documents. The registration and storage of these forms is carried out by the Ministry of Culture of the Russian Federation, and information on issued Certificates in mandatory entered into the relevant registers.
The basis for making a decision on the possibility of exporting cultural property and, accordingly, issuing a Certificate are the results of the examination.
The examination of cultural property is carried out on the basis of the Decree of the Government of the Russian Federation dated April 27, 2001. No. 322 “On approval of the Regulations on the examination and control of the export of cultural property” and is carried out by authorized specialists from museums, archives, libraries, restoration organizations, as well as other freelance specialists certified in accordance with the established regulations.
To conduct an examination, the owner of cultural property (the person authorized by him) submits an application to Rosokhrankultura or its territorial bodies. According to the procedure established by the Government, it contains information about the owner of cultural property, the basis for his right of ownership of cultural property, as well as their description. The following are attached to the application:
A list with a description of cultural property, if the number of items is more than two (in triplicate);
3 photographs of each cultural property measuring at least 8x12 centimeters;
Documents certifying the value of cultural property;
A copy of an identification document of a citizen of the Russian Federation outside the Russian Federation, or a document proving the identity of a citizen or national of a foreign state on the territory of the Russian Federation.
The application and the documents attached to it are registered in a special journal, and the applicant is given a notification of receipt of the application indicating its registration number. If during the review of documents it is discovered that the applicant does not have the right to export cultural property, then Rosokhrankultura or its territorial bodies refuse to issue a Certificate. If circumstances are identified indicating the illegality of possession of cultural property, Rosokhrankultura and its territorial bodies provide relevant information and Required documents to law enforcement agencies.
The duration of the examination of cultural property depends on the complexity expert works, but on general rule should not exceed 30 days. If necessary, cultural property, with the consent of the applicant, may be subjected to additional technological research in museum, archival and restoration institutions of the Ministry of Culture of the Russian Federation or the Federal Archive Service of Russia. In this case, the period for conducting the examination by decision of Rosokhrankultura or its territorial bodies may be extended, but not more than for another 30 days.
The result of the examination is an expert opinion in written form, which is issued on the basis of a comprehensive analysis of cultural property, determining their authenticity, authorship, name, place and time of creation, material and technique of execution, recording dimensions, weight, distinctive features, state of preservation, as well as consideration of submitted documents. It contains reasonable conclusions regarding the possibility or impossibility of exporting the presented items and proposals for their valuation, based on their market value. If the applicant does not agree with the expert opinion, cultural property is submitted for consideration to the State Expert Commission of the Ministry of Culture or the Central Expert Review Commission of the Federal Archive Service. The above-mentioned commissions, in turn, based on a comprehensive analysis of the cultural values and materials submitted for consideration, make a decision on agreement or disagreement with the expert opinion.
After receiving the expert opinion, the official of Rosokhrankultura or its territorial bodies responsible for issuing the Certificate checks the presence of cultural property declared for export in the Electronic Registration and Search automated system for registration of cultural property lost during the Second World War, stolen, illegally exported from the Russian Federation, as well as not subject to export from the Russian Federation (hereinafter referred to as ERPAS). "If the results of verification of cultural property declared for export provide grounds for entering them into ERPAS, the examination materials are transferred to the relevant government bodies, regardless of the consent of the person wishing to export these items.
The decision on the possibility of exporting cultural property is made by the deputy head of Rosokhrankultura or its territorial bodies and is formalized by an order specifying the official responsible for issuing the Certificate. It is issued in three copies: a copy for the applicant, a copy for customs and a copy that is stored in the archives of Rosokhrankultura. The Certificate is accompanied by a bound and sealed list and photographs of cultural property permitted for export, certified by the signature of the authorized person official. Providing a certified list of cultural property and their photographs is due to the fact that when carrying out customs control and customs clearance at the border, officials need to identify the cultural property submitted for registration with the permit that was issued for it.
The examination may also establish that the items declared for export from the territory of the Russian Federation are not cultural values, but cultural items of serial and mass production or modern souvenirs. In accordance with the law, cultural items are not required to provide any permits and are not subject to restrictions established by the Law. In this case, Rosokhrankultura or its territorial body issues a certificate confirming that the named items are cultural items, are not registered with the state, and a Certificate is not required for their export. The certificate form is given in Appendix 3.
Since cultural items are not subject to declaration in writing, a certificate is presented at the request of a customs official if he has doubts that the goods declared for export are not cultural property. However, according to the Customs Code, an individual has the right, at his own discretion, to declare in writing the goods he moves across the customs border, even if they are not subject to mandatory written declaration. In this case, indicating cultural items and the availability of a certificate and its details will be legal.
When filling out the Passenger Customs Declaration (Appendix D), in clause 3.4 you must make a note about the presence of cultural property. On the reverse side, in clause 4.1, the name, description of the distinctive features of cultural property, number and date of issue of the certificate for the right to export them are indicated, indicating the authority that issued the document, quantity in figures and words, as well as value in national currency, euros or dollars USA.
When filling out a cargo customs declaration, the number and date of issue of the certificate for the right to export cultural property is indicated in column 44 " Additional Information/ Submitted documents / Certificates and permits" under number 6.
Thus, an individual exporting cultural property must present to the customs authority:
International passport;
Items related to cultural property;
2 copies of the certificate for the right to export (a copy for customs and a copy for the applicant);
A list of exported items of cultural property, certified by the seal and signature of an authorized person of Rosokhrankultura;
A set of photographs for each item, also certified by the seal and signature of an authorized person of Rosokhrankultura;
Completed customs declaration;
After accepting the customs declaration, a customs official carries out customs inspection of exported cultural property. According to Art. 372 of the Customs Code, the customs authority has the right to conduct customs inspections even in the absence of the declarant in the event of a real threat to the preservation of cultural property. The purpose of customs inspection is to identify exported cultural property with the information contained in the certificate. The customs official must check the authenticity of the documents provided; on both copies of the certificate (Appendix B), in the “Customs Mark” column, put the stamp “Release allowed” and an imprint of a personal numbered seal, or make the entry “Export allowed” with the date and personal numbered stamp . If customs clearance is carried out at the internal customs office, the customs inspector makes the following entry: “Cleared”, with the date and personal number stamp, and marks on the certificate are affixed at the customs office at the border.
The “applicant’s copy” of the certificate is handed over to the person who has passed customs control. A “copy for customs” of the certificate with the documents attached to it remains in the files of the customs authority.
In cases where it is not possible to accurately identify a cultural value (or an item of cultural significance) with the data specified in the relevant documents, or the authenticity of the executed documents is in doubt, customs officials may invite an expert from the territorial department for the preservation of cultural values to conduct a visual examination or performing art historical operations.
Individuals of the Russian Federation, when traveling across the customs border, can also temporarily export cultural property. Temporary export of cultural property is the movement across the customs border of the Russian Federation of cultural property located on its territory, with the obligation to re-import it within a specified period.
In accordance with the Customs Code, temporary export is permitted provided that the temporarily exported goods can be identified by customs authorities upon their re-import. Another condition of this customs regime is that temporarily exported cultural property cannot be alienated, transferred for use, possession or disposal to other persons.
Temporary export of cultural property by individuals may be carried out for the following purposes:
- "for organizing exhibitions;
To carry out restoration work and scientific research;
In connection with theatrical, concert and other artistic activities;
In other necessary cases."
Permission for the temporary export of cultural property is confirmed by a Certificate issued by Rosokhrankultura or its territorial bodies based on an examination. In order to obtain permission, the owner (or a person authorized by him) must contact Rosokhrankultura and submit an application for the temporary export of cultural property. The following are attached to the application:
- “certificate of inclusion of temporarily exported cultural property in protection lists or registers;
Confirmation of notification to the relevant government agency who has taken cultural property under state protection, about their temporary export;
Agreement with the receiving party on the purposes and conditions of the temporary export of cultural property;
Documented guarantees of the receiving party and guarantees of government authorities of the destination country regarding the safety and return of cultural property."
An essential feature is that the temporary export of cultural property can be carried out subject to the conclusion of an agreement between the applicant and Rosokhrankultura on the return of temporarily exported cultural property. Contained in the said agreement the requirement for the return of cultural property is secured by pledging temporarily exported cultural property with the subject of the pledge remaining with the pledgor.
An application for temporary export of cultural property may be refused for several reasons. The first reason is the lack of guarantees for the re-import of cultural property from individual carrying out temporary export. Another reason that excludes the possibility of granting the right of temporary export is the impossibility of ensuring the safety of cultural property. In other words, temporary export to an individual will be denied if the condition of cultural property declared for temporary export does not allow changing the conditions of their storage. If the owner of cultural property declared for temporary export is not determined, and also if cultural property is the subject of a dispute over ownership, then the right to temporary export will also be refused. The fourth reason for refusing to grant the possibility of temporary export is a natural disaster, armed conflicts in the country to which the temporary export of cultural property is intended, as well as other circumstances that impede the safety of temporarily exported cultural property. An application for the temporary export of cultural property may also be refused if the Russian Federation does not have diplomatic relations with the state to which the temporary export of cultural property is intended.
If all conditions established by law are met, the deputy head of Rosokhrankultura (its territorial bodies) makes a decision on the possibility of temporary export of cultural property and issues an order specifying the official responsible for processing and issuing a Certificate for the right to export cultural property from the territory of the Russian Federation. An authorized official of Rosokhrankultura or its territorial bodies issues the applicant 3 copies of a Certificate of the established form (Appendix B) for the right to temporarily export cultural property from the territory of the Russian Federation: “Copy for customs”, “Copy for the applicant” and Copy for the archive of the territorial administration of Rosokhrankultura. Each Certificate must be certified by the seal of Rosokhrankultura (its territorial body). It is accompanied by bound and certified specified seal a list and 2 photographs measuring at least 8x12 cm of cultural property permitted for export. The list and photographs are also certified by the signature of an authorized official and are an integral part of the Certificate. Temporary export of cultural property without presenting a Certificate of Temporary Export to the customs authorities is prohibited.
The period of temporary export is not specified in the Customs Code, but it is determined that it is established by the customs authority at the request of the declarant, based on the purpose and circumstances of the export, but cannot exceed the period specified in the certificate for the right to export cultural property. The deadline and purpose for the export of cultural property must be observed while they are outside the territory of the Russian Federation. In exceptional cases, the temporary export of cultural property may be extended on the basis of a letter from Rosokhrankultura or its territorial bodies. The form of notification to customs authorities carrying out customs clearance of temporary export of cultural property about the extension of the above deadlines is given in Appendix 4. If a decision is made to extend the period of temporary export, Rosokhrankultura or its territorial bodies notify the customs control authority that carried out the customs clearance of temporarily exported cultural property. valuables, their owner and the person applying for an extension of the temporary export period.
Cultural property temporarily exported by individuals is subject to mandatory written declaration. When filling out the Passenger Customs Declaration (Appendix D), a mark is placed in clause 3.4 “Cultural values”, which indicates that the declarant has them. The following mark is placed in clause 3.11 “temporarily imported (exported) goods”. On the reverse side, in clause 4.1, the number and date of issue of the certificate for the right to export them are indicated, indicating the authority that issued the document; quantity in numbers and words, value in national currency, euros or US dollars, as well as name and detailed description cultural values.
When filling out a cargo customs declaration under the temporary export of goods regime, the number and date of issue of the certificate for the right to export cultural property is indicated in column 44 “Additional information / Submitted documents / Certificates and permits” under number 6.
The procedure for customs clearance and customs control of temporarily exported cultural property is similar to the procedure for the export of cultural property prescribed above, taking into account the following additions:
Mandatory compliance with the agreement on the purposes and conditions of temporary export with the receiving party, without allowing it to be changed after the certificate is issued;
After accepting the customs declaration and carrying out the appropriate actions, the customs official, in two copies of the certificate for the right to export cultural property, in the column “Customs mark” makes the entry “Exported before...”, with the date and imprint of the personal numbered stamp;
When re-importing cultural property, the customs official, after identification, makes an entry in the certificate: “Imported” and affixes the date and imprint of the personal numbered stamp.
Cultural property returned to the Russian Federation after its temporary export is subject to mandatory examination and identification. This circumstance is due to the fact that upon return, genuine cultural property can be replaced with fakes and copies. Currently, in order to carry out customs clearance and customs control of cultural property brought back after temporary export, the mandatory submission of an examination report to the customs authorities is not required. However, if there are doubts about the authenticity of cultural property returned to the territory of the Russian Federation, customs authorities have the right to involve experts from Rosokhrankultura to assist in conducting customs control.
Upon the return of cultural valuables from museum collections after their temporary export, a notice of their return is sent within 10 days to the state body that issued the certificate for the right to export them, signed by the head of the repository and accompanied by a conclusion on the state of preservation of cultural valuables returned after temporary export. If, in the process of monitoring the temporary export of cultural property, non-compliance with the goals and deadlines of the temporary export is detected, the Ministry of Culture and its territorial bodies take measures aimed at returning such cultural property and bringing the persons who carried out the temporary export to justice in accordance with the legislation of the Russian Federation.
According to statistics from the East Siberian Territorial Administration of Rosokhrankultura for 2009 and the first quarter of 2010, there were no applications from individuals for the right to temporary export of cultural property. This is explained by the fact that the procedure for granting citizens the right to temporary export of cultural property from the territory of the Russian Federation is quite difficult process both in temporary and documentary terms: one of the conditions for granting permission for the temporary export of cultural property is the conclusion of an agreement with the receiving party, which in itself becomes a certain complexity. For these reasons, individuals generally do not exercise their right to temporarily export cultural property.
2.2 Procedure for import and temporary import of cultural property into the Russian Federation
The import of cultural property means the movement across the customs border of the Russian Federation of cultural property located on the territory of a foreign state, without the obligation to export it back. The basic principle of the import of cultural property is stated in Art. 23 of the Law: “Imported cultural property is subject to customs control and special registration in the manner established by the Federal Service for the Preservation of Cultural Property jointly with the State Customs Committee of the Russian Federation.” Thus, when importing cultural property into the Russian Federation, a citizen is responsible for registering the imported items in Rosokhrankultura.
Another rule establishing the procedure for the import of cultural property into the Russian Federation by an individual is established by Letter of the Federal Customs Service of Russia dated May 3, 2006 No. 01-06/15085 “On the list of goods subject to declaration in writing in accordance with the legislation of the Russian Federation.” In accordance with it, cultural property is included in the list of goods subject to mandatory written declaration. Thus, a citizen traveling across the border of the Russian Federation and carrying cultural valuables with him (in accompanied luggage) is obliged to declare in writing the goods he is importing: fill out the Passenger Customs Declaration (Appendix D) and put a note about their presence in clause 3.4 “Cultural valuables” . If cultural values are transported separately (in unaccompanied baggage) or sent to an individual, the Order of the State Customs Committee establishes that declaration is made by filling out an application of the established form.
When importing cultural property into the Russian Federation, the question arises of collecting customs duties and taxes. According to the Customs Code, “subject to written declaration and special registration of cultural property upon import, individuals are provided with a complete exemption from payment customs duties, taxes." Accordingly, if the imported cultural property has not undergone a special registration procedure with Rosokhrankultura (its territorial bodies), then the cost and weight of the item are included in the total cost and weight indicators of goods transported by an individual. In this case, the cultural property, along with other goods , is the basis for calculating customs duties according to the general rule: “Without paying customs duties and taxes, individuals can import goods in accompanied and unaccompanied luggage (with the exception of Vehicle), the total value of which does not exceed 65 thousand rubles and the total weight of which does not exceed 35 kilograms." In relation to such excess, a single rate of customs duties and taxes is applied in the amount of 30 percent of the customs value of these goods, but not less than 4 euros per 1 kilogram. Thus, in order to release cultural property, customs authorities need to provide a document confirming the fact of registration of these items on the territory of the Russian Federation, or pay customs duties, taking into account the value of cultural property, which sometimes reaches millions of rubles.
In accordance with Art. 337 of the Customs Code, cultural property can be released against the security of payment of customs duties and taxes until a document is submitted to the customs authorities confirming that these goods belong to cultural property and have undergone a special registration procedure on the territory of the Russian Federation.
A citizen can also be guided by Article 131 of the Customs Code, paragraph 5 of which states that “if individual documents cannot be provided simultaneously with the customs declaration, then upon a reasoned request of the declarant in writing, the customs authorities in writing allow the submission of such documents on time, necessary for their receipt, but no later than within 45 days after acceptance of the customs declaration." Cultural property is placed in a temporary storage warehouse. The declarant, in turn, submits a written obligation to provide documents within the prescribed period and applies to Rosokhrankultura to register cultural property. Rosokhrankultura, when applying to an individual, registers imported cultural property in the prescribed manner, ensures an examination, checks the availability of information about imported items in state registers to identify items wanted by international requests and issues a document confirming the registration of cultural property. After the individual submits this document to the customs authority that processes the above-mentioned cultural property, it is released into the territory of the Russian Federation for free circulation.
When importing cultural property, an individual traveling across the customs border of Russia can also introduce the specified items for a certain period of time, using the regime of temporary import of goods. Temporary import of cultural property is the movement across the customs border of the Russian Federation of cultural property located on the territory of a foreign state, with the obligation to re-export it within a specified period.
The customs regime of temporary import is permitted provided that the goods can be identified by the customs authority upon their re-export. The period of temporary import is established by the Customs Code and should not exceed 2 years. The terms of temporary import of cultural property are established by customs authorities depending on the purposes and circumstances of import, as a rule, for a period of one year with a possible subsequent extension without the provision of additional permits from Rosokhrankultura. Temporarily imported cultural property cannot be alienated, transferred for use, possession or disposal to other persons. If there are grounds to believe that cultural property temporarily imported by individuals may not be returned, the customs authority grants permission for the temporary import of cultural property only if customs duties and taxes are paid.
Temporarily imported cultural property is also subject to declaration and special registration with the bodies of Rosokhrankultura, indicating the period of stay of cultural property on the territory of the Russian Federation. When declaring temporarily imported cultural property, the following must be additionally attached to the customs declaration:
Two sets of photographs of temporarily imported cultural property;
Two copies of lists describing temporarily imported cultural property, compiled in free form by the owner himself or a person authorized by him, indicating the authorship, title of the work, place and time of creation, materials and technique of execution, size, state of preservation, insurance assessment and period of re-export cultural values.
In the absence of photographs, the authorized person must provide a detailed description of the temporarily imported cultural property. If the lists are compiled on foreign language, then they must be accompanied by a translation into Russian.
A customs official identifies temporarily imported cultural property on the basis of presented documents, photographs, etc. On the front side of each sheet of the list and the back side of the photographs, the customs inspector affixes the date and imprint of a personal numbered stamp. If necessary, a note may be made: “subject to examination upon return export.”
After customs control, the first copy of the list and a set of photographs together with the customs declaration are returned to the declarant for further registration of cultural property (at Rosokhrankultura or its territorial bodies), and the second copies are stored together with the customs declaration at the customs authority for further control during re-export. Rosokhrankultura, in turn, registers imported cultural property in the prescribed manner, ensures an examination and checks the availability of information about imported items in the Federal Register of Cultural Property. When re-exporting, cultural property must be deregistered with Rosokhrankultura or its territorial bodies.
Temporary import of cultural property into the territory of the Russian Federation may be prohibited in accordance with international treaties of the Russian Federation or in connection with requests from the competent authorities of foreign states. For example, the import and temporary import of cultural property for which a search has been announced is prohibited. Such valuables are subject to detention with a view to their subsequent return to their rightful owners.
2.3 Regulation of the movement of cultural property in accordance with international agreements of the Eurasian Economic Community
The Eurasian Economic Community (hereinafter referred to as EurAsEC) is an international economic organization endowed with functions related to the formation of common external customs borders of its member countries, such as Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan, the development of a common foreign economic policy, tariffs, prices and other components of functioning common market. The agreement establishing the EurAsEC was signed on October 10, 2000 in Astana by the presidents of Belarus, Kazakhstan, Kyrgyzstan, Russia and Tajikistan. In accordance with the agreement of October 6, 2007, signed by the presidents of Belarus, Kazakhstan and Russia, a Customs Union was formed within the EurAsEC, the purpose of which is to create a single economic space (hereinafter referred to as the Customs Union), where the highest body is the Interstate Council at the level of heads of state . Decisions of the Interstate Council of the EurAsEC are binding on the territory of the member countries of the Customs Union.
Thus, for a comprehensive analysis of legislation in the field of regulation of the movement of cultural property by individuals across the customs border of the Russian Federation, it is also necessary to consider the procedure established within the EurAsEC. By the decision of the Interstate Council at the level of heads of state No. 19 of November 27, 2009 “On the unified non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation” (hereinafter referred to as the Decision), a Unified list of goods to which bans or restrictions on import or export by member states of the Customs Union within the EurAsEC in trade with third countries (hereinafter referred to as the List). In accordance with this List, cultural values are classified as goods restricted for movement across the border of the Customs Union. This document lists all categories and types of cultural property that fall under the scope of the Decision, as well as the corresponding codes of the Unified Commodity Nomenclature foreign economic activity.
The movement of cultural property across the borders of the Customs Union is regulated by the Regulations “On the procedure for the import into the customs territory of the member states of the Customs Union and export from the customs territory of the member states of the Customs Union of cultural property, documents from national archival funds and originals of archival documents,” which applies to both legal, and on individuals importing and exporting cultural property for personal use.
The export of cultural property is carried out on the basis of licenses issued by the authorized state body of the member state of the Customs Union in whose territory the applicant is registered. However, if an individual has a permit issued by a government agency that controls the export of cultural property, obtaining a license is not required. In other words, an individual who has received a certificate from Rosokhrankultura for the right to export cultural property from the territory of the Russian Federation is not required to provide a license to export these items from the territory of the customs union. The following categories of cultural property are not subject to export from the territory of the Customs Union without the obligation to re-import them:
Representing historical, artistic, scientific or other cultural value and classified in accordance with the current legislation of the member states of the customs union as particularly valuable objects of cultural and documentary heritage of the peoples of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation, regardless of the time of their creation;
Protected by the member states of the customs union and included by them in protection lists and registers in the manner established by the legislation of the member states of the customs union, regardless of the time of their creation;
Permanently stored in state and municipal museums, archives, libraries, and other state repositories of cultural property of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation.
The regulation also stipulates the period of temporary export: it is determined by the state body of the state - a member of the customs union, which exercises control over the export of cultural property, documents from national archival funds and original archival documents.
When importing cultural property into the territory of the Customs Union, the provision of a license and other permits is not required. However, it is stipulated that the import of cultural property into the territory of a member state of the customs union is subject to registration if this is provided for by the legislation of the member state of the customs union.
Thus, the movement of cultural property is regulated both at the national and international levels. It should be noted that the adoption of the Decision of the Interstate Council “On unified non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation” did not significantly change the procedure for the movement of cultural property across the customs border of the Russian Federation by individuals. This circumstance is primarily due to the fact that the provisions of the Decision were based on the national legislation of the countries participating in the customs union, which largely coincides. At the same time, an analysis of the national legislation of the Russian Federation showed that there are a number of problematic issues that arise during the import and export of cultural property that need to be considered and appropriate measures taken to resolve them.
3. Proposals for improving the system for moving cultural property based on the analysis carried out
The problem of improving and further developing legislation is one of the eternal legal problems. Humanity is characterized by a desire to improve the reality around it, including the legal one. However, it must be remembered that an increase in the number of legal norms regulating a certain group of social relations can lead to a decrease social significance rights.
Even a superficial glance at the current legislation on cultural values in the Russian Federation suggests a complete absence of an integrated systematic approach to rule-making in this area of legal regulation. The provisions of regulatory legal acts, the number of which is constantly growing, are extremely inconsistent and sometimes contradict each other, which creates serious difficulties in their application in practice.
3.1 Problematic issues related to the regulation of the movement of cultural property that arise when applying legislation in practice
The first problematic issue related to the regulation of the movement of cultural property is the different definition of the concepts of “cultural value” in Russian law. A typical example reflecting the current state of current legislation is the fact that there is still no unambiguous definition of the very concept of “cultural values”. So, customs legislation regulating the procedure for the import and export of cultural property contains its own definition, and the fundamentals of legislation on culture - its own. The need for unification of concepts and terminology in cultural legislation is noted by all scientists studying this issue without exception.
To solve this problem, it is necessary to uniformly define the terminology used to regulate the relations under consideration in various legal acts, branches of legislation, and correlate them with the terminology used in international cultural law.
The second problem of legislation on the movement of cultural property is the relationship between the concepts of “cultural value” and “cultural items”, as well as the corresponding permits and the qualifications of customs officials in matters of classifying/not classifying items as cultural property. As already noted in the second chapter of this thesis, in order to export items classified in accordance with the law as cultural property from the territory of the Russian Federation, customs authorities must submit a permit document, namely a Certificate of the right to export cultural property from the territory of the Russian Federation (Appendix B). By order of Rosokhrankultura dated March 14, 2008. No. 117 establishes a list of items for which a Certificate must be provided. If the item declared for export does not fall into the above list, but is a “cultural item,” Rosokhrankultura issues a Certificate (Appendix B) stating that these items can be exported without presenting a Certificate. The difficulty lies in the fact that customs officials cannot always accurately identify which group the exported item belongs to. For example, citizen Ivanova, when crossing the border of the Russian Federation, has with her a brooch, handmade by a local jeweler, bought for her shortly before departure. Of course it is jewel does not apply to cultural values. However, in accordance with the law, a customs official is obliged, when carrying out customs control and customs clearance, to require a permit document: either a Certificate of not being classified as cultural property, or a Certificate of right to export, since due to his incompetence in this matter, he is not can accurately determine the significance of this particular brooch for the cultural heritage of our country. Undoubtedly, citizen Ivanova did not even suspect the need to obtain a permit for such a seemingly simple thing. As a result, in accordance with current legislation, administrative and even criminal measures may be applied to her.
The other side of this problem is that the permitting document, both the Certificate and the Certificate, is issued on the basis of an examination. A fee is charged for carrying out the examination in the manner established by Rosokhrankultura; accordingly, this creates additional inconvenience for citizens exporting seemingly ordinary items that are not of interest to the cultural heritage of Russia. Thus, the export of seemingly ordinary things becomes a serious problem for citizens going abroad.
To resolve this issue, it is necessary to take a set of measures affecting both sides of the emerging legal relations. Firstly, educational work should be carried out among customs officers, including both an explanation of the importance of preserving cultural heritage and clarification of the responsibility of officials for the deliberate passage of cultural property across the customs border of the Russian Federation without official permission, and an explanation of the differences between the concepts of “cultural value” and “ cultural items." The experience of training personnel for customs in the East Siberian region, in particular, on the territory of the East Siberian Territorial Administration of Rosokhrankultura is interesting. In order to improve the legal knowledge of customs officers in this area, interaction was organized between the personnel training department of the East Siberian region of the STU and the Territorial Administration of the Ministry of Culture of the Russian Federation for the preservation of cultural property in Irkutsk. The beginning was single lectures for listeners Training center East Siberian Customs Administration. Over time, the subject matter of the classes expanded and ceased to be part of only the initial training of customs officers, and cooperation became permanent and closer. In 2001, the head of the department Anna Nikolaevna Voitovich and adviser Svetlana Aleksandrovna Anchutina, together with the methodologists of the personnel training department of the East Siberian Customs Administration Oleg Alekseevich Astafiev and Tatyana Yuryevna Gordon, as part of advanced training for employees of the customs clearance and control departments, for the first time developed and tested curriculum on training of customs clearance expert staff with a specialization in “cultural property”. The course topics included the following questions: video-computer recording of cultural property; registration of documents for exported and imported cultural property; features of the export of philatelic collections, numismatics and bonistics collections; incunabula, early printed and rare publications; specimens of faleristics of cultural value; collectible weapons; the main distinctive features of icons that have artistic and historical value and other topics. Employees of the territorial administration took a creative approach to conducting classes, making extensive use of the existing rich collection of visual material, involving management experts in giving lectures and conducting seminars, demonstrating authentic exhibits to students, conducting classes and excursions to museums in Irkutsk. Practical classes to acquire skills from novice expert employees were held in the art museum, in the exhibition hall "Spasskaya Church", the Irkutsk Regional Museum of Local Lore, and in an antique store. Today practical lessons on the topic “Cultural values” have become an integral part of the professional training course for customs officers in the Siberian region.
Secondly, to solve the problem it is necessary to inform the population about the procedure for removing such items. For example, information sheets, booklets, information about the details of Rosokhrankultura should be placed in all places where goods are sold, travel agencies, the export of which requires permits; Briefly and simply stated recommendations on the movement of cultural property and responsibility for their non-declaration should be placed in prominent places at all checkpoints across the customs border of the Russian Federation.
The third problem is the procedure for registering cultural property when importing it into the customs territory of the Russian Federation. In accordance with customs legislation, the import of cultural property is duty-free, subject to their registration with the territorial bodies of Rosokhrankultura. Otherwise, the cost and weight of cultural property are taken into account when calculating customs duties and taxes. However, it is not possible to register cultural property before actually crossing the customs border. Therefore, in practice, individuals either import such items against the security of payment of customs duties and taxes, or draw up a written obligation to provide permits within a specified period. In both cases, cultural property is placed in a temporary storage warehouse. Taking into account the specific features of the object in question, as well as special conditions storage for certain categories of cultural property; in some cases, their placement in a temporary storage warehouse is not possible.
This problem can be solved by regulating the provisions of the legislation on the procedure and timing of special registration of cultural property. For example, introduce a rule that would allow the declarant to confirm in writing the obligation to register cultural property within 15 days after customs clearance. The customs official is obligated to provide information about the transferred cultural property, as well as information about the declarant, to the territorial department of Rosokhrankultura within two days.
The fourth problem is the need to confirm ownership of cultural property and provide documents confirming their value when submitting an application to Rosokhrankultura for an examination. Article 36 of the Law clearly defines the circle of persons who have the right to export cultural property from the territory of the Russian Federation: “The export of cultural property can be carried out only by the legal owner of the items or by a person authorized by the owner in the manner prescribed by law.” Along with this, in the Government Decree of April 22, 2001. No. 322 “On approval of the Regulations on the examination and control of the export of cultural property” also states that the examination of cultural property is carried out at the request of the owner, and for it to be carried out it is necessary to provide a document confirming the right of ownership of this item. Thus, only a citizen who can document the ownership of this item can have the right to export cultural property from the territory of the Russian Federation. In addition to documents confirming ownership of an object submitted for examination, a citizen is also required to provide a document certifying the value of cultural property. The question is: on the basis of what documents confirming ownership can a citizen take out a family heirloom that is passed down from generation to generation and represents cultural value? Where and how can he get them? The same questions should be asked regarding documents confirming the value of cultural property.
The solution to the above problem is seen in the revision of the list of documents that must be submitted by the applicant when applying to Rosokhrankultura for an examination and, accordingly, the subsequent issuance of a Certificate or Certificate.
The fifth problem is the insufficiently developed infrastructure of the territorial departments of Rosokhrankultura. Considering the remoteness of the Trans-Baikal, Naushkinsk, Chita, Buryat customs offices (not to mention the customs posts) from the East Siberian territorial administration of Rosokhrankultura, located in Irkutsk, the timing of the examination, as well as obtaining permits for them, is significantly delayed, and, as As a result, customs clearance deadlines are violated.
It is necessary to develop the infrastructure of the territorial departments of Rosokhrankultura in Eastern Siberia and locate experts closer to the places of customs clearance.
The sixth is the problem of identifying cultural property: that is, the correspondence of the item that is being exported and the permit document submitted to the customs authorities for its export. For example, for the examination, the applicant provided a reproduction of a painting by a famous artist, the export of the original from the territory of the Russian Federation is prohibited. Based on the examination, Rosokhrankultura issues a Certificate of the right to export this reproduction; photographs of the object are attached to the Certificate in the prescribed manner. Identification of cultural property by customs officials consists of correlating the presented items with photographs attached to the Certificate. Since the photographic image of the original and a copy of the original are identical, instead of a reproduction, the original painting may be submitted for customs clearance, falling into the category of items prohibited for export, which will entail the illegal movement of cultural property that is important for the cultural heritage of Russia.
One of the ways to solve the problem of identifying cultural property, which has been discussed more than once at interdepartmental meetings, is seen to be the application of special markings, which allows customs officials to be guaranteed to establish that exactly those cultural property for which permission has been received are being exported.
The seventh problem is the movement of cultural property across the customs border with the fraudulent use of documents or means of identification. Unfortunately, items of cultural heritage of the Russian Federation, which are of great importance for the history and culture of our country, most often become the object of illegal export using this particular method. This type of customs offense involves the use of forged or fake permits during customs clearance: Certificates and Certificates. It is worth noting that either manufactured in a makeshift way documents, or legally issued documents that have been illegally amended.
The difficulty in identifying such offenses lies in the fact that most false and forged documents are prepared by highly qualified specialists in this field, using modern computer technology.
A solution to this problem can be coordination of the activities of customs authorities and Rosokhrankultura through the creation of interaction mechanisms and timely transfer of information between these regulatory authorities. One of such mechanisms could be an integrated interdepartmental information system for monitoring the export of cultural property.
3.2 Project of an integrated information interdepartmental system for monitoring the movement of cultural property
Improving the system for moving cultural property is only possible if integrated approach to the problem under study. Along with improving the legislation of the Russian Federation in the field of export and import of cultural property, to solve it it is necessary to attract all possible resources: in this part of the thesis it is proposed to consider the possibility of using information systems and technologies when controlling the movement of cultural property across the border of the Russian Federation by individuals.
The preservation of the country's cultural heritage directly depends on the quality of work of customs authorities. Currently among priority areas The development of the customs service faces the task of further automation of work to facilitate and speed up customs clearance operations, increase the reliability and reliability of information. Unfortunately, the informatization of customs authorities, which began in the 1990s, did not affect all areas of activity. In particular, this concerns the registration and control of the movement of cultural property across the customs border of the Russian Federation.
The main areas of activity in terms of information and technical support for customs structures involved in the registration and control of cultural property moved across the customs border of the Russian Federation should be:
Development of a methodological, regulatory and methodological framework for the entire range of issues related to the informatization of customs authorities in terms of the movement of cultural property across the customs border of the Russian Federation;
Introduction of new information technologies into the relevant structural units, development and improvement of information and technical infrastructure, technical means of customs control over the movement of cultural property;
Development and implementation of principles, methods and mechanisms for system integration of information and technical infrastructure objects of the relevant structural units;
Security information security relevant divisions of customs authorities;
Improving the system of information interaction between customs authorities and their relevant structural units dealing with the movement of cultural property with executive authorities, namely with the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (hereinafter referred to as Rosokhrankultura), its territorial bodies, and other government and non-governmental organizations of the Russian Federation and foreign countries(museums, exhibition centers).
One way to solve this problem could be an integrated interdepartmental information system between Rosokhrankultura and the Federal Customs Service. Such an integrated system between customs authorities and Rosokhrankultura will have many advantages, among which the following can be highlighted:
Simplification of customs clearance of cultural property when crossing the customs border of the Russian Federation;
Increasing the efficiency of customs control of cultural property when crossing the customs border of the Russian Federation;
Tracking the routes of legal movement of items of cultural value across the customs border of the Russian Federation;
Control of the re-import of cultural property after temporary export from the territory of the Russian Federation;
Control over the special registration of imported cultural property established by the legislation of the Russian Federation;
Minimizing risks related to the provision of unreliable permits for the export of cultural property.
According to the above reasons, we can conclude that the creation of an integrated interdepartmental information system for monitoring the export and import of cultural property, at this stage of informatization of customs authorities, is extremely necessary for the preservation of the cultural heritage of our country.
When creating an example of an “integrated interdepartmental information system for monitoring the export and import of cultural property,” a database management system (hereinafter referred to as DBMS) included in the Microsoft Office package was used - MSAccess. This circumstance is due to the various advantages of this program. MSAccess DBMSs have a more developed system of protection against unauthorized access and allow several users to work simultaneously with one file. In this program, it is possible to create a connection between different tables by one or more fields, which allows you to share data from several tables, which in turn saves memory, increases the speed of data processing and avoids unnecessary errors.
The first and main object of a database is tables. They contain all the necessary information in a structured form. To create an example of an integrated interdepartmental information system for monitoring the movement of cultural property, it is necessary to create 2 tables in the MSAccess DBMS: the first for Rosokhrankultura employees, the second for customs officials.
In the database for Rosokhrankultura, table No. 1, presented in Figure 3.1, we enter the following field names:
Number in order;
Description of the item;
Owner of the item;
A document confirming the ownership of the item;
The decision to classify this item as a cultural property or a cultural item;
Cost in rubles;
The official who issued the permit;
Date of examination;
Date of issue of the permit.
The next step towards creating an example of an integrated system is to create a database table for customs officials.
To do this, enter the following names in the appropriate fields:
Number in order;
Full name of the declarant;
Description of the item;
Direction of movement;
Permit number;
The official completing the transaction;
Move date.
Figure 3.1 - database in MS Access for officials of Rosokhrankultura
In order to link the Rosokhrankultura database and the customs authorities database, select the appropriate key field, as shown in Figure 3.2, according to which these two tables will match. In our case, to quickly search for the relevant cultural value, it is more convenient to select the “permit document number” field.
For example, declarant Vishnyakova G.V. declared a reproduction of V. Vasnetsov’s painting “Bogatyrs” from 1971 for export, as indicated in paragraph 3.4 of the Passenger Customs Declaration. On the reverse side of the declaration, in paragraph 4.1, she described the cultural value, indicated the number and date of issue of the corresponding permit, which she received on August 13, 2008 at the territorial body of Rosokhrankultura at her place of residence.
Figure 3.2 - database in MS Access for customs officials
The customs official enters the corresponding permit number into the database shown in Figure 3.2 in the search line and receives all information on this subject from the Rosokhrankultura database, thereby monitoring the accuracy of the information provided and permits.
With the help of such a system it is also more convenient to maintain statistics of displaced cultural property. You just need to create a new table for the fields that are necessary for reporting.
Software MicrosoftAccess does not allow tables to be used on remote computers and was chosen for ease of presentation clear example creation of two autonomous databases (Rosokhrankultura database and customs authorities database), which can be linked by one of the key fields. However, customs authorities use newer information Technology, which ensure the exchange of information at a distance.
To implement the task, namely to improve the system of customs control over the export and import of cultural property, it is necessary to develop and implement a similar program in the work of regulatory authorities. Economic effect the benefits of developing and implementing such a system can hardly be overestimated. Every year, customs officers identify and suppress the illegal movement of objects of fine art, including icons, as well as ancient musical instruments, coins, handwritten, early printed and rare books, Orthodox crosses, orders and medals, antique watch and other items that are antiques and art. For the period 2007 -2010 The customs authorities of the Russian Federation initiated 353 criminal cases in relation to cultural and historical values: 123 criminal cases in 2007, 122 in 2008 and 108 criminal cases in 2009. It should be borne in mind that it is impossible to express in numbers the spiritual and moral wealth of society. A set of measures aimed at preventing the illegal movement of cultural property across the customs border of the Russian Federation will help reduce the number of items representing cultural property illegally exported from the territory of the state, thereby preserving priceless things that represent the spiritual and material wealth of society, the national heritage of our country .
Thus, improving the system of customs regulation of the movement of cultural property by individuals at this stage consists in the formation of a systematized legislative framework that clearly and unambiguously regulates the procedure for the movement of cultural property, as well as in the creation and implementation of information and technical software products into the relevant structures to improve the quality customs control of objects of cultural and historical heritage of the Russian Federation.
4. Safety and environmental friendliness of work
The topic of the thesis is improving the system of customs regulation of the movement of cultural property by individuals across the customs border of the Russian Federation. This section discusses metrological support provided during the examination of cultural property, in particular, works of easel painting.
A work of easel painting - a painting, in the broad sense of this concept - is a complex of materials, technological operations and the creative initiative of the painter, acting as the bearer of a certain idea that he materializes. Thus, to resolve the issue of the authenticity and value of a work, two types of research are used: technological and art criticism.
4.1 Art criticism examination of paintings
Art criticism consists of identifying the features of the work under study with the features of other, indisputably authentic works belonging to a specific author. In other words, such an examination ultimately comes down to establishing the identity of individual characteristics of different objects of study. The task of an art critic is to establish facts that prove that a given work is a genuine work of a particular master, a copy or a fake. However, when attributing works of art, an art critic is guided only by visual memory and intuition. His name determines the price of the painting and is a guarantee for the buyer. In this case, the expert is not at all obliged to justify his conclusion.
Undoubtedly, the use of art historical expertise in determining the authenticity of a painting, as well as its history, is extremely necessary, since no technical means will not be able to determine the features of the style of a particular author. But at the same time, art criticism cannot always accurately determine the time period, as well as, for example, the place where the painting was created. When divided into image and material, into the creative result and the sum of the means and techniques by which this result was achieved, the area of technology remains outside the field of view of the art critic.
Already at the beginning of the 20th century, many museum specialists came to the conclusion that the intuitive method was far from being the most reliable way insurance of museums against the penetration of counterfeit paintings. Subjective assessments issued by experts aroused increasing protest and distrust from the directors of the largest European museums.
In the thirties, the prevailing opinion became that artistic expertise, like any scientific research, should not fall below the existing level of science and rely only on the intuitive opinion of the art critic and his knowledge. And the authors of this point of view saw the only opportunity to improve the quality of artistic expertise in the use of natural science methods for studying works of art, that is, the so-called technological expertise.
4.2 Technological examination of painting
Until recently, the technological features of easel painting were obvious only in the general view. But thanks to the technological research carried out over the last half century, it has become clear that in the use of materials and technological techniques for constructing a picture, there are certain patterns, specific features characteristic of the works of certain eras, national and local schools, and individual masters. Today we can talk about the typical features inherent in each structural element of a painting - the base, the ground, the drawing, the paint layer - and about the existence of canonical forms of conducting the painting process itself, characteristic of certain art schools and eras, that is, about the features that determine in the narrowest possible within the temporal and regional framework, the technological specifics of the work as a whole.
Practice shows that knowledge of these objective features greatly facilitates attribution and examination. Recently, the area of intuition in determining various phenomena of human intellectual activity is increasingly retreating before the requirement of substantiated evidence and assessments. And it is quite obvious that the absence of the necessary technological features in a painting attributed to a particular time, school or master allows us to speak about the incompatibility of the work with its existing attribution.
The result of the examination depends entirely on the expert’s competence: on his ability to correctly interpret the data obtained. Consequently, as in any examination, in the end everything is decided by the professionalism of the expert. But professionalism in this case is not based on subjective feelings and intuition, as in art criticism, but is based on a logical understanding of the correspondence of the exact laboratory data obtained during the study of the work under study with objective data obtained under identical conditions during the study of genuine paintings by the same master, time or schools.
Laboratory analysis of each structural element of the painting, thanks to the currently collected technical information, makes it possible to fairly accurately determine the origin of the work under study.
The basis of the painting is its material, structure (type of wood, fabric fiber, metal composition), design features, possible different times of its parts, changes in the original format, etc. - allows you to presumably attribute the work to a particular time or place of creation.
If the material for the base of the painting is wood, the study involves determining the type of wood, its preservation, the nature of the processing of the boards, design features, and in some cases - age.
The tree trunk consists of a heterogeneous mass, the structure of which is clearly visible with a magnifying glass even at low magnification. Thanks to this, by the nature of large vessels and the shape of cells, it is not difficult to determine the type of tree from among the most common. In more complex cases, they resort to examining a section of wood under a microscope. Typically, when botanically identifying a tree, cuts are made in three directions: transverse (or end), perpendicular to the axis of the trunk, tangential, passing along the fibers tangentially to the circumference of the growth rings, and radial, passing along the fibers through the center of the trunk and cutting the growth rings radially. Depending on which part of the trunk the base boards are cut from, their reverse sides are a radial or tangential cut. Therefore, a sample for examining wood is taken by cutting off its layer from the back side of the board. The sample taken must be of sufficient thickness that, when cut in a direction perpendicular to the grain, a cross section can be obtained. A cross-section sample can also be taken from the end of the board. These two cuts are enough to qualified specialist could determine the type of tree from them.
It is much more difficult to determine the time for making the base. In recent years, several methods have been proposed for dating archaeological objects, among which the radioactive carbon method and the dendrochronology method are used to determine the age of wood.
Dendrochronology, or the method of dating wood using growth rings, is based on their study on a cross section of an unknown tree. The annual rings of wood are characterized by unevenness, which is associated with a certain pattern with climatic conditions: under favorable temperature and humidity conditions, a wide annual ring grows, and under unfavorable conditions, a narrow one. By comparing the tree rings of the object under study with an absolute chronological scale compiled for a specific geographic region, it is possible to date an unknown cut of a tree with an accuracy of one year. Dendrochronology, widely used in archeology and other related fields, is also used to date wooden painting bases.
An important point in studying the foundation is to determine its safety. Often the hands of an art historian or restorer come across paintings on a tree heavily infested with woodworm. The bases of Italian paintings, made of soft wood, almost without exception, suffered greatly from the larvae of this insect. Therefore, some paintings by Italian masters in the 18th-19th centuries were transferred from wood to canvas, while the boards of others were significantly thinned. The latter circumstance explains the insignificant thickness of many boards of early works of Italian painting. On the contrary, the bases of the works, made of tannin-containing oak and resin-rich conifers, are less susceptible to insect attack and are usually preserved unchanged. Therefore, before speculating on the origin of a painting damaged by insects, the nature of the damage should be carefully examined.
In addition, you need to remember that the use of old, corroded boards is one of the oldest methods of falsification. Without touching the back side, on which the natural flight holes of insects, old seals, gallery inventory numbers and other attributes confirming the antiquity of the work were preserved, the board, having removed the remains of the old painting from it, was covered with soil on the front side, and then a new work was painted, passing off as old painting. This kind of manipulation is recognized by means of x-ray examination. In places where there are larvae passages on the surface of the board, the mass of soil fills the voids; the soil in these places becomes thicker, absorbs x-ray radiation more strongly and gives a clear image of the passages of the larvae on the x-ray photograph in the form of light lines with rounded edges and circles corresponding in width (or diameter) to the course of the larva and clearly visible against the darker background of the tree.
The study of the fabric base involves determining the nature of the fiber, the method of weaving the threads, the preservation of the fabric, the original size of the work and other data.
There are several ways to identify spinning fibers. The main ones among them are microscopic examination of the appearance and structure of the fiber and the microchemical method, based on microscopic observation of the behavior of fibers under the influence of various reagents, for which two threads are taken from the edges of the canvas, running in a mutually perpendicular direction. Definition of fiber by appearance does not always give a positive result. Therefore, they additionally resort to microchemical analysis, when the determination is carried out under a microscope using color reactions (coloristic method) or a solubility test is made. In the first case, the fiber is treated with a reagent or dye, under the influence of which each type of fiber acquires a specific color, making it easier to judge its nature.
The most common is the iodine method. Under the influence of chlorine-zinc-iodine - a reagent for cellulose (the main part of plant fiber), cotton fiber is colored, depending on the concentration of the solution, red-violet or bluish-violet, hemp fiber - red-brown, and flax fiber - purple. If the concentration of the solution is reduced, the color of the flax fiber fades and disappears.
The ground of the painting - its structure, composition and color make it possible to attribute the work under study to a particular time, region, art school or, on the contrary, speak of its incompatibility with the work of a particular master or school. The study of soil, thanks to the components included in it, which make it possible to date the object under study, is one of the main and indispensable moments of technological expertise, in many cases turning out to be decisive in its conclusions.
The study of soil, in addition to determining its preservation and other characteristic features, involves, first of all, determining its constituent components - filler, binder and, in the case of colored soil, pigments, as well as clarifying the specifics of its structure - the sequence of application and the characteristics of each layer.
Except for those cases where the painting was left unfinished or when the paint layer was lost in places, the ground is hidden from the eyes of the researcher. On finished primed canvases stretched on a stretcher, the primer can be seen on the edges bent on the edges of the stretcher. However, regardless of how the exposed soil can be seen in the picture, its complete study is only possible if a sample is obtained. Such a sample can be taken from the edges of the canvas, from areas of paintings not covered with paint, in places where the paint layer has fallen off, in cracks or other accessible places. In other cases, soil samples are taken that include the paint layer.
The chemical composition of the soil filler is usually judged by microchemical analysis. In the course of such a laboratory study, it is necessary to use physicochemical methods, for example, X-ray diffraction analysis, infrared spectroscopy and others, which make it possible to unambiguously and with sufficient completeness judge the composition of the soil under study and note exactly those of its features that can combine it with certain group works or distinguish them from it.
The author's drawing, if identified, shows the progress of work on the painting and makes it possible to judge the author's execution or the copy origin of the work. Comparison of the identified drawing with the drawing of the master’s original works, with his graphic works, expands the possibilities of identifying the author of the painting.
An effective means of identifying the original drawing is to study the painting in infrared rays. Surface dirt, darkened varnish, some paints that are opaque to ordinary visible light are transparent to infrared rays. At the same time, soil materials - gypsum, chalk, lime, various whites - have a high reflective coefficient for these rays, and coal, graphite and soot, which contain almost pure carbon and are most often used as drawing materials, absorb them to a strong extent. Therefore, in cases where infrared rays can penetrate the paint layer and reach the ground, which will largely reflect them, and the substance used to make the drawing will absorb them, favorable conditions arise for revealing the drawing.
In infrared photography, such a pattern is readable as clear black lines on a lighter background. The presence of a design made (or enhanced) with black carbon-containing pigment in combination with chalk or gypsum primer and thin-layer painting explains the possibility of its reading on many works of Western European and Old Russian masters.
The paint layer - its composition and structure - most fully reflects the specifics of the choice of materials and techniques inherent in certain eras, schools and individual masters. After certain patterns were established in the use of pigments, binders and ready-made paints, which, like the soil, have dating characteristics, it became possible, based on their identification, in conjunction with the identified features of the remaining structural elements of the picture, to say not only when and where it was created the work under study, but also make an assumption about its author or deny that the work under study belongs to him.
A set of issues directly related to the technology of creating the work, the study of the method of constructing the paint layer, the handwriting of the master, changes made to the work during the process of its creation, as well as its preservation, are resolved using non-destructive research methods.
Research in ultraviolet rays is one of the most important moments in the study of wall painting, where one or another technique of the painter is revealed in these conditions with particular completeness. Unlike ultraviolet rays, infrared rays, due to their less scattering in the environment, have the ability to penetrate some paints, which are transparent for this type of radiation. Therefore, with their help it is possible to detect changes in the paint layer or restore details and signatures lost over time.
A special case of studying the paint layer is the study of signatures on paintings. Since the artist’s signature usually serves, although not always deservedly, as an argument in attribution, it is necessary to dwell somewhat on the specifics of its analysis.
The work of a medieval master should not bear the stamp of individuality. Over time, when works often began to be valued not in themselves, but in connection with the name of their creator, masters began to put their name, monogram, or symbol on the picture. At the same time, when the signature on the painting became not only a sign of ownership, but also a kind of guarantee of quality, a factor determining the price of the work, falsification of signatures, their forgery, arose.
The signature on a painting does not always indicate that the painting was actually painted by this master. It is known that the workshops of Cranach, Titian, Rubens and other painters produced works that these masters barely touched with a brush. Nevertheless, these paintings were considered their works and were signed by them. At the same time, recognizing the signature on a painting as fake does not at all mean that the work itself is not authentic. Often genuine paintings were provided with a false signature of the master for credibility; often the master signed his painting many years after its creation, when the handwriting and nature of the signature could have changed, and the painting had become very old. There are also cases when, wanting to hide the true value of a work, the owner put the signature of a little-known painter on it. Taking all this into account, many experts of the last century already assigned signatures a very modest role in the attribution of paintings. But, nevertheless, the signature should always be the object of study of the work being studied.
In determining the authenticity of a signature, examining it under a binocular microscope with different magnifications and different lighting is very important, and in many cases decisive. The nature of the writing of the letters, their connection with the main layer of paint, the movement of the brush and other details inherent in this area of the work should become the object of careful observation and comparison. In many cases, it is advisable to take macro- and microphotography of the signature or its individual sections. Known, although not decisive, as is sometimes believed, the location of the signature is important: whether it lies under the varnish or is applied on top of it, that is, how closely it is connected with the author’s painting.
Painted over signatures and inscriptions located under a layer of old varnish can sometimes be detected using infrared rays. It must, however, be emphasized once again that the identification of an old signature, even one located under a record or under another signature, does not always indicate its authenticity. Deliberately lightly painting over a false signature is a well-known technique of falsifiers, calculated on the fact that the signature will be “accidentally” found when washing the painting and will confirm the “authenticity” of the painting.
It is best to begin determining the safety of a paint layer by viewing it in the light of visible luminescence excited by ultraviolet radiation. If the painting in the light of luminescence emits a uniform milky-bluish light, in which the image appears as if covered with transparent tissue paper, we can conclude that the painting is well preserved. Individual dark places against the background of luminescence of the varnish surface may indicate partial abrasion or loss of varnish, or small retouches in areas of scree and broken paint layers. Areas of the paint layer that have undergone restoration recordings and tinting over the varnish are clearly visible in the light of luminescence when visual inspection paintings and photographs in the form dark spots, showing the locations and area of the records. You can also distinguish tints under a layer of varnish: if the latter is not very thick and has not decomposed too much, then such tints look much paler than those made over varnish.
Today, the dynamics and time frame for the use of a number of classical painting pigments are quite well known, the exact dates of the discovery and industrial production of modern pigments are known, and a group of pigments that were discovered and became widespread in the early and mid-20th century is known. Finally, extensive information has been collected on the characteristic range of pigments used in different time in various national schools and the most outstanding masters of painting.
The binder of paints and primers, like pigments, also did not remain unchanged. Beginning in the sixties of the 20th century, previously unused resins and paraffin began to be added to oil paint, and previously known resins were used in a new quality or in new proportions. But even in the case when the paint layer does not contain resins, but consists only of oil, the study of its physico-chemical parameters (state of the oil matrix, direction of polymerization, etc.) allows us to judge the actual age of the work, how its aging process took place - was it natural or artificial. An important milestone in the evolution of painting techniques was the use of synthetic binders. In the thirties of the twentieth century, alkyd, acrylic and vinyl were invented polymer materials Accurate data on the production of artistic paints based on them abroad are also known. In the mid-twentieth century, synthetic materials became firmly established in painting practice. Various types of glue painting, gouache and watercolor and tempera binder (including the so-called “synthetic tempera”, often used to falsify graphic works of the Russian avant-garde) have a certain time frame for use.
Having all this information, thanks to the developed research methodology and accumulated experience, during the technological examination it becomes possible to significantly narrow the possible scope of execution of unknown or controversial paintings.
The only reliable data on the paint layer material can only be obtained by laboratory analysis microparticles of substance taken from the work. To keep the number of such samples to a minimum, laboratory testing begins only after the complex of non-destructive studies discussed above has been completed. This is due to the fact that already during the optical study of the work it is possible to obtain some idea of the nature of the pigments used and their distribution along the plane of the work.
Under the influence of ultraviolet rays, many substances, including some pigments, begin to luminesce (glow) in the dark. Since the color of the glow is a constant property of a substance, independent of its visible color, some pigments can be determined by the color of luminescence without removing samples. For example, lead, zinc, lime and titanium whites glow differently when exposed to ultraviolet rays. Depending on the composition, lead white emits light from white to brownish, zinc - dull or bright yellow-green, lime - cool white-blue, and titanium - violet. Since white paints are certainly present to one degree or another in every work, by the nature of luminescence one can determine their approximate composition, and therefore attribute the work to a certain time.
Study cross section The paint layer is the only means that allows one to judge the technological features of constructing a painting layer by individual masters and the painting techniques typical of a certain era or art school.
The study of the protective layer comes down to determining its composition, safety, quality and, to some extent, the time of application. The composition of the protective layer, like other organic components of painting, is determined various methods physical and chemical analysis.
One such method is the radiocarbon method, which is based on the decay of a radioactive isotope of carbon and has long been used by historians and archaeologists.
In the earth's atmosphere, carbon atoms are present in the form of three isotopes: 12 C, 13 C and 14 C. The light isotopes 12 C and 13 C are stable, and the heavy isotope 14 C is radioactive, with a half-life of 5730 years. However, its content in the Earth's atmosphere remains approximately constant (one atom of 14 C per 1000 billion atoms of 12 C), since the isotope 14 C is constantly formed in the atmosphere from nitrogen atoms under the influence of cosmic rays. Plants, animals and other organisms that maintain gas exchange with the atmosphere absorb 14 C and during life contain it in approximately the same proportion as the earth's atmosphere. But when an organism dies, its exchange with the atmosphere stops, 14 C is no longer absorbed by tissues and its content begins to slowly decrease as a result of radioactive decay. If you measure the ratio of 14 C to 12 C in a sample, you can determine the age of the sample, more precisely, the time that has passed since its death. The fewer 14 C atoms left, the older the object.
Of course, the detailed technology for applying the method is not so simple. Theoretically, if the initial 14 C content is known, the age of the sample can be directly calculated based on the law of radioactive decay. But first you need to make sure that the sample is not contaminated with later carbon. It should also be taken into account that the atmospheric content of 14 C fluctuates, since hard cosmic radiation is not constant, and there are also variable sources of carbon (for example, volcanoes, and in modern world- combustion of coal and oil), affecting the relative content of 14 C. To get rid of these inaccuracies, the method is calibrated using wood samples whose age is accurately known from their growth rings.
Age determination using this method occurs in three stages. First, the sample is purified from random, later impurities. The content of carbon isotopes is then measured and the so-called radiocarbon age is calculated using the decay law. And finally, using the radiocarbon age, using a calibration curve, the calendar date of the sample is determined, which is given in the usual values: years AD or BC. These details have long been known to specialists; the isotope ratios have been calibrated across the entire historical time scale using confidently dated samples, including historical monuments.
So, based on the above methods and methods for studying works of art, the technologist draws up an expert opinion on conducting a technological examination, which reflects the information received about the subject under study. The expert, first of all, must take into account that one of the individual analytical methods used in the course of a technological study of a work of art cannot provide an answer to the entire set of questions posed. This turns out to be possible only as a result of using the entire complex of non-destructive and laboratory analysis methods used in practice.
Conclusion
Cultural values are a special form of materialization of spiritual value, which in the customs sense is defined as goods and requires special storage conditions and careful treatment during customs operations. Cultural assets have a special status among other property due to the presence in them of historical, scientific, artistic or other cultural (intangible) value. The loss of an object that has one of these characteristics should be considered primarily not as material damage to the owner, but as the loss of a piece of the cultural heritage of Russia, as harm to the entire society. Consequently, the main public danger of the illegal movement of cultural property is the invaluable and practically irreparable loss of the country’s cultural heritage, the reserves of which are not endless.
Thus, creating an effective state system Preservation of the cultural and historical heritage of our country is one of the most important tasks of Russian law enforcement agencies. The Federal Customs Service of Russia takes an active part in this work, since direct control over the movement of cultural property is carried out by the customs authorities.
As a result of the thesis carried out in the second chapter comprehensive analysis legislative framework, a number of problems were identified that arise when applying the legislation regulating the procedure for the export and import of cultural property in practice:
– different interpretations of the concepts of “cultural values” in Russian law;
– a problem that arises when customs officials classify an item declared for export as a “cultural property” or “cultural item” if the declarant fails to provide any permit;
– lack of awareness population on the procedure for the export of cultural values and cultural items from the territory of the Russian Federation;
– the procedure and time for special registration of cultural property when imported into the territory of the Russian Federation;
– the need to confirm ownership of cultural property and provide documents confirming their value when submitting an application to Rosokhrankultura for an examination;
– insufficiently developed infrastructure of the territorial departments of Rosokhrankultura, as a result of which the remoteness of some territorial departments of Rosokhrankultura from customs posts;
– the problem of identifying cultural property: that is, the correspondence of the item being exported and the permit document submitted to the customs authorities for its export;
– provision of invalid, false permits for the right to export cultural values or cultural items from the territory of the Russian Federation.
In order to minimize the above problems, the third chapter proposed ways to solve them, one of which is the creation of an interdepartmental information system to monitor the movement of cultural property.
The model of the interdepartmental system, developed and presented in the second paragraph of the third chapter, will allow us to solve a number of problems that arise in practice when moving cultural property by individuals across the customs border of the Russian Federation, the main one of which is increasing the efficiency of customs control when moving items that represent the cultural heritage of our countries.
List of used literature
1. International Convention"On the protection of cultural property in the event of armed conflict." 1954, The Hague.
2. International Convention "On measures aimed at prohibiting and preventing the illegal import, export, and transfer of ownership of cultural property." 1970, Paris.
3. International Convention "On the Protection of the World Cultural and Natural Heritage". 1972, Paris.
4. International UNIDROIT Convention "On the International Return of Stolen or Illegally Exported Cultural Property". 1995, Rome.
5. Decision of the Customs Union Commission No. 168 of January 27, 2010 “On ensuring the functioning unified system non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation."
6. Decision of the Interstate Council of the EurAsEC (the highest body of the customs union) at the level of heads of state No. 19 of November 27, 2009 “On unified non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation.”
9. Code of the Russian Federation on Administrative Offenses of December 30, 2001 No. 195-FZ.
10. Law of the Russian Federation No. 4804-1 of April 15, 1993 “On the export and import of cultural property.”
11. Decree of the Government of the Russian Federation No. 322 of April 27, 2001 “On approval of the Regulations on the examination and control of the export of cultural property.”
12. Order of the Ministry of Culture of the Russian Federation No. 185 of March 21, 1995 “On the examination of cultural property declared for export from the Russian Federation.”
13. Order of Rosokhrankultura No. 65 of November 10, 2004 “On the procedure for registering the export and temporary export of cultural property.”
14. Order of Rossvyazohrankultura No. 117 of March 14, 2008 “On the list of cultural property subject to the Law of the Russian Federation of April 15, 1993 No. 4804-1 “On the export and import of cultural property”, and documentation issued for the right to export them from territory of the Russian Federation."
15. Order of the Ministry of Culture of Russia No. 73 of September 1, 2008 “On the layout of territorial bodies of the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage.”
16. Letter of the State Customs Committee of Russia No. 14-10/25129 dated September 1, 2000 “On the collection by customs authorities of a special fee for the right to export cultural property from the Russian Federation.”
17. Letter of the State Customs Committee of Russia No. 01-06/24071 dated June 19, 2001 “On streamlining regulatory framework on customs control over the movement of cultural property."
18. Letter of the Ministry of Culture of Russia No. 01-188/16-30 dated December 13, 2001 “On sending a list of documents required to obtain a certificate for the right to temporarily export from the Russian Federation cultural property included in the museum, archival and library collections of the Russian Federation” .
19. Letter of the State Customs Committee of Russia No. 05-18/13062 dated April 2, 2002 “On customs clearance and customs control of cultural property.”
23. Letter of Rosokhrankultura of Russia No. 01-06-247 dated October 1, 2008 “On the territorial bodies of Rosokhrankultura”.
26. Boguslavsky M.M. International protection of cultural property. – M.: International relations, 2004. – 191 p.
27. Boguslavsky M.M. Cultural values in international circulation: legal aspects. – M.: Yurist, 2005 – 256 p.
28. Guev A.N. Article-by-article commentary to the Customs Code of the Russian Federation. – M.: Exam, 2007. – 975 p.
29. Cultural values through the eyes of a customs officer: Tutorial/ IN AND. Dyakov, I.V. Dyakov, N.A. Levdanskaya, S.N. Lyapustin, G.P. Shcherbina; under the general editorship of prof. V.I. Dyakova. – Vladivostok: VF RTA, 2004. – 202 p.
30. Sennov A.S. Access 2007. Training course. – St. Petersburg: Peter, 2007. – 267 p.
31. Anchutina S.A. Work of the expert commission of the Territorial Administration of the Ministry of Culture of the Russian Federation on the preservation of cultural values in Irkutsk // Preservation of cultural values: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
32. Voitovich A.N. Legal basis preservation of cultural values // Preservation of cultural values: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
33. Dyakov V.I. Cultural values from “things in themselves” to “things for us”
// Customs policy of Russia in the Far East. – Vladivostok, 2002. No. 3. pp. 75 – 85.
34. Dyakov V.I. Some aspects of the protection of cultural property in the Far East // Actual problems preservation of cultural values in the Far Eastern region. Part 2. – Vladivostok, 2003. pp. 46 – 53.
35. Dyakov V.I. Customs problems and improving the preservation of cultural values // Russian Customs Service on the protection of the country’s economic interests: materials of reports of the All-Russian Conference. – M., 2003. P. 173 – 176.
36. Dyakov I.V. The current state of the legislation of the Russian Federation on the protection of cultural values and the problem of its harmonization // Current problems of preserving cultural values in the Far Eastern region.
Part 2. Vladivostok, 2003. pp. 36 – 45.
37. Dyakov I.V. International legal regulation of relations in the sphere of culture and its place in the system of norms of international public law // Current state, problems and prospects of customs affairs in the Far East of Russia: collection. scientific Work. Vladivostok:
VF RTA, 2004. pp. 178 – 182.
38. Kachalova V.G. State policy of Russia in the field of protection of cultural property in the 18th – 20th centuries. – St. Petersburg, 2000. – 261 p.
39. Polyakov M.A. On the interaction of the customs service and the Territorial Administration of the Ministry of Culture of the Russian Federation for the preservation of cultural values in Irkutsk in matters of personnel training in the East Siberian region // Preservation of cultural values: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
40. Somov A.V. The fight of customs authorities against the smuggling of cultural values // Preservation of cultural values: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
41. Yumashev E.I. Legal issues in the field of information support for the preservation of cultural values // Preservation of cultural values: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
42. Resolution of the regional interdepartmental meeting on legal problems of the preservation of cultural property and the sale of antiques December 3-7, 2001, Irkutsk // Preservation of cultural property: materials of the working regional interdepartmental meeting in Irkutsk. – Irkutsk, 2001.
43. Virtual customs [electronic resource] // Customs legislation and customs news: [website] // URL: http://vch.ru. (Date of access: March 23).
44. Federal Customs Service [electronic resource] // Movement of goods by individuals: [site] // URL: http://www.customs.ru/ru/fl_info. (Date of access - April 11).
45. Federal Customs Service [electronic resource] // The procedure for moving cultural property across the customs border of the Russian Federation: [site]
//URL:http://www.customs.ru/ru/fl_info/vivkyltc/?id286=1071&i286=1. (Date of access – April 15).
Appendix A
Unified Commodity Nomenclature for Foreign Economic Activity of the Customs Union: section XXI “Works of art, collectibles and antiques”, group 97 “Works of art, collectibles and antiques”.
| HS Code | Position name | Import customs duty rate (percentage of customs value in either euros or US dollars) | |
| 9701 | Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 49.06 and other finished goods, painted or decorated by hand; collages and similar decorative images: | ||
| 9701 10 000 0 | – paintings, drawings and pastels | PC | 0 |
| 9701 90 000 0 | – other | - | 0 |
| 9702 00 000 0 | Original engravings, prints and lithographs | PC | 0 |
| 9703 00 000 0 | Original sculptures and figurines from any materials | PC | 0 |
| 9704 00 000 0 | Postage stamps or state duty stamps, postage stamps, canceled, including the first day of cancellation, postage stationery(stamp paper) and similar articles, whether or not used, other than goods of heading 49.07 | - | 0 |
| 9705 00 000 0 | Collections and collectibles in zoology, botany, mineralogy, anatomy, history, archaeology, paleontology, ethnography or numismatics | - | 0 |
| 9706 00 000 0 | Antiques over 100 years old | - | 0 |
Appendix B
Appendix B
Form of Certificate for the export of cultural objects from the territory of the Russian Federation.
Appendix D
Figure D.1 – Passenger customs declaration form
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Graduate work
Organization of customs control and customs clearance of cultural property
Introduction
1.2 History of the formation and development of legislation on the protection of cultural property in Russia
1.3 World practice of regulating the movement of cultural property across the customs border
2.1 The procedure for the export and temporary export of cultural property from the territory of the Russian Federation
2.2 Procedure for import and temporary import of cultural property into the Russian Federation
2.3 Regulation of the movement of cultural property in accordance with international agreements of the EurAsEC
3. Proposals for improving the system for moving cultural property based on the analysis carried out
3.1 Problematic issues related to the regulation of the movement of cultural property that arise when applying legislation in practice and ways to solve them
3.2 Project of an integrated information interdepartmental system for monitoring the movement of cultural property
Conclusion
Bibliography
Appendix A
Introduction
cultural value customs export
Preserving cultural heritage and passing it on to future generations is one of the priorities of every country. The state is obliged to preserve cultural values located on its territory, but at the same time should not interfere with free international cultural exchange. An important role in regulating this process on the territory of Russia is assigned to customs authorities, which ensure compliance with legislation regarding control over the procedure for the movement of cultural property across the customs border of the Russian Federation.
According to the Customs Code of the Customs Union, the suppression of illicit trafficking in cultural property with its movement outside the Russian Federation is considered one of the main functions of customs authorities.
Today, cultural values, as objects of primary attention, are on a par with such particularly dangerous types of smuggling as smuggling of drugs, weapons, radioactive substances, endangered species of animals and plants.
One of the prerequisites for increasing the effectiveness of the fight against smuggling is a good knowledge of the subject with which the customs official will have to deal: he must accurately understand what is behind the wording of the concepts “cultural values” and “cultural objects”, be able to distinguish between them and know the corresponding permitting documents provided for customs clearance.
On the one hand, it is impossible to burden citizens with unnecessary suspicions and unreasonably slow down customs control and clearance procedures; on the other hand, it is unacceptable to display professional incompetence and breach of duty, indirectly contributing to the illegal export of cultural property.
The relevance of the problem under consideration, its practical significance, as well as the problems of legislative regulation and its practical application, determined the choice of research topic, purpose and main objectives course work.
The object of the study is the system of legal relations that arise in the process of moving cultural property across the customs border of the Russian Federation.
The subject of the study is legislation regulating the movement of cultural property across the customs border of the Russian Federation.
The purpose of the course work is to study the features of organizing customs clearance and customs control of cultural property. Identify problematic issues related to customs clearance of cultural property and ways to solve these problems.
To achieve the stated goal of the course work, the following tasks were set:
Define the concept of “cultural values”;
Analyze the current legislation regulating the procedure for the export and import of cultural property;
Identify problematic issues that arise when applying legislation in practice;
Theoretical significance. This work contains an analysis of the legislation regulating the procedure for the import and export of cultural property, examination, as well as the issuance of permits for the legal movement of these items across the customs border of the Russian Federation by individuals. Based on the analysis, problematic issues arising in connection with the movement of cultural property by individuals across the customs border of the Russian Federation are identified.
The practical significance of the work lies in the development of proposals for improving the legislation regulating the procedure for the movement of cultural property by individuals across the customs border of the Russian Federation.
1. Cultural property as objects of customs control
Cultural values have always been the object of close attention from people, both different nationalities and different segments of the population, regardless of their standard of living, political or social status. For some, these are objects to satisfy their cultural needs, for others, they are a way of existence or a means of making money.
Interest in the problem of preserving cultural values can be considered an indicator of the level of cultural development of the population of any country. Today, developing countries are demanding the return of cultural property, and this problem is being actively discussed by international organizations and in international forums. Exchange for the purposes of education, science and culture expands knowledge of human civilization, enriches the cultural life of all peoples and creates mutual respect and understanding between countries. It is important to note that cultural values, being one of the main elements of civilization and culture of peoples, acquire their true value only if their origin and history are precisely known.
For the multinational people of Russia, cultural heritage sites are of unique value, and are also an integral part of the world cultural heritage. Article 44 of the Constitution of the Russian Federation proclaims not only the right of every citizen to access cultural values, but also enshrines the duty of every citizen to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments.
1.1 The concept of “cultural values” and its legal characteristics
International law and Russian legislation provide several definitions of the concept of “cultural property”. The definition of “cultural property” was first formulated in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. According to this Convention, the following items are considered cultural property, regardless of their origin and owner:
a) “movable or immovable values that are of great importance for the cultural heritage of each people, such as architectural, artistic or historical monuments, religious or secular, archaeological sites, architectural ensembles, which as such are of historical or artistic interest, works of art, manuscripts, books, other objects of artistic, historical or archaeological significance, as well as scientific collections or important collections of books, archival materials or reproductions of property specified above;
b) buildings whose main and actual purpose is the preservation or display of movable cultural property referred to in paragraph (a), such as museums, large libraries, archive storage facilities, as well as shelters intended for the preservation in the event of armed conflict of movable cultural property referred to in point (a);
c) centers in which there is a significant amount of cultural property specified in points (a) and (b), the so-called centers of concentration of cultural property."
Along with the 1954 Convention, a broad definition of the concept of “cultural property” was given in the 1964 UNESCO Recommendation “On measures to prohibit and prevent the illicit export, import and transfer of ownership of cultural property.” From the point of view of this Recommendation, “cultural property is considered to be movable and immovable property of great importance for the cultural heritage of each country, such as works of art and architecture, manuscripts, books and other objects of interest from the point of view of art, history or archeology , ethnological documents, typical specimens of flora and fauna, scientific collections and important collections of books and archival documents, including music archives." It is significant that it is in this Recommendation that for the first time the division of cultural property into two categories is indicated: movable and immovable.
The division of things into two categories, namely immovable and movable, was known in Roman law and in the Middle Ages. In relation to movable property, the well-known formula “movable property follows the person” (“mobilia personam sequuntur”) was applied. Exclusively movable cultural property became the subject of regulation of the 1970 UNESCO Convention "On the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property." According to Article 1 of the Convention: “for the purposes of this Convention, cultural property is property of a religious or secular nature which is considered by each State to be of archaeological, prehistoric, historical, literary, artistic and scientific significance.” It should be noted that the meaning of this definition for archaeology, prehistory, history, literature, and science is within the purview of the State Party to the Convention. It follows that it is within the competence of each state to determine the list of categories of cultural property.
In Russian legislation, for the first time, the concept of “cultural values” was enshrined in the Law of the Russian Federation of October 9, 1992 No. 3612-1 “Fundamentals of the legislation of the Russian Federation on culture” and was formulated as “moral and aesthetic ideals, norms and patterns of behavior, languages, dialects and dialects, national traditions and customs, historical toponyms, folklore, artistic crafts and crafts, works of culture and art, results and methods of scientific research of cultural activities, buildings, structures, objects and technologies that are unique in historical and cultural terms have historical and cultural significance territories and objects."
In 1988, the Union of Soviet Socialist Republics (hereinafter referred to as the USSR) ratified the 1970 UNESCO Convention and, in accordance with it, the Law of the Russian Federation “On the Export and Import of Cultural Property” (hereinafter referred to as the Law) was adopted, which more clearly distinguishes the categories of items which relate to cultural values. In accordance with this law, cultural values are understood as “movable objects of the material world located on the territory of the Russian Federation, namely:
Cultural property created by individuals or groups of individuals who are citizens of the Russian Federation;
Cultural values that are important for the Russian Federation and created on the territory of the Russian Federation by foreign citizens and stateless persons living on the territory of the Russian Federation;
Cultural values discovered on the territory of the Russian Federation;
Cultural values acquired by archaeological, ethnological and natural scientific expeditions with the consent of the competent authorities of the country where these values originate;
Cultural property acquired through voluntary exchanges;
Cultural property received as a gift or lawfully acquired with the consent of the competent authorities of the country from which the property originates."
The “objects of the material world” mentioned above are listed in another article of the Law, in accordance with which “cultural values include the following categories of objects:
a) historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and work of outstanding personalities (state, political, public figures, thinkers, scientists, literature, art);
b) objects and their fragments obtained as a result of archaeological excavations;
c) artistic values, including:
1) paintings and drawings entirely handmade on any basis and from any materials;
2) original sculptural works from any materials, including reliefs;
3) original artistic compositions and installations from any materials;
4) artistically designed religious objects, in particular icons;
5) engravings, prints, lithographs and their original printed forms;
6) works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
7) products of traditional folk arts and crafts;
8) components and fragments of architectural, historical, artistic monuments and monuments of monumental art;
d) ancient books, publications of special interest (historical, artistic, scientific and literary), separately or in collections;
e) rare manuscripts and documentary monuments;
f) archives, including photo, phono, film, video archives;
g) unique and rare musical instruments;
h) postage stamps, other philatelic materials, separately or in collections;
i) ancient coins, orders, medals, seals and other collectibles;
j) rare collections and specimens of flora and fauna, items of interest to such branches of science as mineralogy, anatomy and paleontology;
k) other movable items, including copies that have historical, artistic, scientific or other cultural significance, as well as those taken under state protection as historical and cultural monuments.”
Thus, this Law exhaustively stipulates almost all items that may directly or indirectly relate to cultural values.
Despite the fact that international law and Russian legislation provide several definitions of the concept of “cultural values,” the general specifics remain unchanged: cultural heritage forms a set of material and spiritual cultural values of other eras that are subject to preservation, revaluation and use of existing achievements. The concept of “cultural values” covers both material objects and spiritual human activity. Cultural value can be possessed by means of labor and its material products, works of spiritual creativity, philosophical ideas, scientific achievements, traditions, moral and legal norms, etc.
The variety of terms used is explained by the complexity that arises when using concepts generally accepted in relation to cultural values in relation to customs legislation.
On January 1, 2010, on the basis of the Decision of the Interstate Council of the Eurasian Economic Community No. 18 of November 27, 2009 “On the unified customs and tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation,” the Unified Commodity Nomenclature for Foreign Economic Activity (hereinafter referred to as ETNVED) came into force ), in which, as in the Russian Tax Code for Foreign Economic Activity that preceded it, a separate section is allocated to cultural values, which includes group 97 “Works of art, collectibles and antiques.” The legislator proposes a classification of cultural property into six commodity items, a detailed list of which is presented in Appendix A. However, it should be noted that such goods are classified in other commodity items of the Unified Tax Code of Foreign Economic Activity if they do not meet the conditions arising from the texts of the notes or commodity items of this group. Articles classified in headings 9701 to 9705 remain in those headings even if they are more than 100 years old.
According to the Customs Code of the Customs Union, the suppression of illegal trafficking of cultural property with its movement outside the Russian Federation is considered one of the main functions of customs authorities. Cultural values, as objects of primary attention, are on a par with such particularly dangerous types of smuggling as smuggling of drugs, weapons, radioactive substances, endangered species of animals and plants.
The degree of responsibility for committing this type of crime is determined by the Criminal Code of the Russian Federation: “punishable by imprisonment for a term of 5 to 12 years with a fine in the amount of one million rubles or other income of the convicted person for a period of up to five years or without it.” Experts have found that the detection rate of smuggling is 6-10%. It is generally accepted that this applies to all types of smuggling. However, the specificity of cultural property as an object of illegal movement allows in some regions an even lower detection threshold: for the Far East, the figure obtained by the calculation method does not reach below 1%.
One of the prerequisites for increasing the effectiveness of the fight against smuggling is a good knowledge of the nature of the phenomenon with which one has to deal.
1.2 World practice of regulating the movement of cultural property across the customs border
As noted above, one of the tasks of any state is to ensure the preservation of the values of national culture. Naturally, cultural values created in the process of creativity can and are in circulation, including the ability to move across the borders of many countries around the world, both for the purpose of exhibition and sale. However, not all cultural property is transported legally.
Italy suffers the most from criminal attacks on cultural property among Western European countries. This is due to the fact that over 60 percent of all works of art are located in Italy. Every year in this country there are about eighteen thousand thefts of paintings, statues, and archaeological valuables. Italian mafia organizations are active in the art market. It was they who led to the devastation of the resources of ancient Italian art.
The reasons mentioned above explain the adoption by Italy, as well as the UK, Germany, India, Mexico and a number of other countries of laws on the export of cultural monuments, which establish criminal liability for their violation. The purpose of the laws is to prevent the export of valuable cultural objects from the country concerned. They establish special export rules for cultural property, which are characterized by detailed regulation and certain rigidity.
In these countries, the export of cultural property is carried out mainly under a special permit (license), but the conditions for obtaining licenses are different in all states. For example, Mexico does not issue permits for the export of archaeological sites. In Indonesia, export permits are only issued for registered monuments. In Great Britain, the following rules are established: a license is required to export from the country manuscripts of any purpose, documents, archives, photographs and negatives made more than seventy years ago. The license is provided for antiquities of any purpose dating back at least a hundred years (including works of art), if their value is less than 4 thousand pounds sterling. There are exceptions to this rule. The export of cultural property for the purposes of scientific research, exchange and display at exhibitions is allowed.
In Germany, according to the Federal Law of August 6, 1955 “On the Protection of German Cultural Property from Export,” a special permit is provided for the export of cultural property abroad. Such permission is issued by the Ministry of Culture or the Ministry of Higher and Secondary Education of Germany. If the export of cultural property from Germany would cause serious damage to national heritage or science, an export permit will not be issued. Exporting protected items from Germany abroad without permission is punishable by imprisonment or a fine. At the same time, things are confiscated, regardless of whether they are the property of the perpetrator or third parties. All works of art and other cultural property (including archival materials), the removal of which would be considered an irreparable loss to the German cultural heritage, must be included in the List of Cultural Property of National Heritage. Permission to export such items is issued on the basis of the conclusion of an expert commission, otherwise such valuables cannot be exported.
In France, back in 1975, the Central Bureau for Combating theft of Works and Objects of Art was created within the French Ministry of Internal Affairs. It is entrusted with several main tasks: coordination of activities aimed at preventing thefts; coordination of activities aimed at combating thefts, as well as concealment and purchase of stolen items; centralization of relevant information; special training for the entire country. Structurally, the Central Bureau is part of Interpol in France, which gives it the opportunity to have access to all international information related to works of art and cultural property in general. Like other foreign similar services, the Central Bureau places the main emphasis on the prevention of these crimes.
Legislative acts on cultural property in different countries have much in common; however, some differences remain between the countries from which cultural property is actively exported, primarily illegally, and the states into which they are imported. Let us dwell on the legal regulation that exists in some of these states, both the first and second groups.
The countries of the first group include Italy, Greece, Latin American countries, and a number of countries in Asia and Africa. Thus, in Mexico, Brazil, Argentina, and Jordan, a ban has been imposed on the export of certain categories of cultural property. A feature of Italian legislation is the free re-export of items for five years after their import, which is often used for fraudulent transactions with valuables through the initial import of counterfeits and the subsequent export of originals from Italy on an allegedly legal basis.
The second group includes countries such as the United States of America (hereinafter referred to as the USA) and Japan. There is no doubt that one of the countries into which antiques and archaeological finds from all over the world are actively imported is the United States. Every year, tens of thousands of works of art and antiquities cross the border of this country. Legal regulation of the circulation of cultural property is carried out in the United States both through the adoption of legislative acts and through court decisions (precedents), recognized as sources of law. Another country actively importing cultural property is Japan, where the Law on the Protection of Cultural Property was adopted in 1950. According to this Law, only items that are part of the “national treasure” or “important cultural property” are subject to export controls.
A comparative examination of the laws of many states shows that the list of cultural values largely coincides. However, at the same time, there are differences, the presence of which reflects historical characteristics, traditions of national cultures, and the role that the protection of cultural values plays in a particular country. One thing remains unchanged: the government of each country is interested in preserving the country’s cultural heritage on its territory, regardless of the political system, as well as a particular historical period.
1.3 History of the formation and development of legislation on the protection of cultural property in Russia
The problem of legal protection of cultural property in Russia has deep historical roots. Attempts to regulate this area of public relations can be traced back to the 15th century in the Pskov Judgment Charter, which established liability in the form of the death penalty for a church thief. Pursuing the main goal of protecting church property from criminal attacks, the Pskov Judgment Charter unwittingly contributed to the preservation of cultural values concentrated in monasteries and churches.
During the 18th century, there was an awareness of the importance of cultural heritage and the problems of its protection. In 1726, the first historical and art museum was created in Russia - the Armory Chamber. The emergence of historical science, the establishment of archaeological societies and the beginning of their excavations forced us to pay great attention to the material evidence of the past.
Attempts were made to regulate relations related to cultural values in the 19th century. As a result of the reform of state power under Alexander I, issues of cultural heritage protection were assigned to the competence of the Ministry of Internal Affairs of the Russian Empire, and in 1859 the Imperial Archaeological Commission was created under the Ministry of the Imperial Household.
At this stage of development of legislative thought, considerable attention of legal scholars was paid to determining the specific range of structures and things that should be classified as historical monuments. Simultaneously with the recognition of their scientific, artistic value and social significance, measures were developed aimed at ensuring the safety of cultural values, protecting them from accidental or deliberate destruction. At first, they tried to solve the problem by relying on legal regulation through departmental instructions. An example of this is the circular letter of 1826 and the decrees of the Holy Synod of 1842, as well as a special article of the Construction Regulations of 1857, which prohibited the demolition of ancient buildings. However, the adoption of these documents could not constructively change the existing provisions, which forced specialists to begin developing a new approach to the problem of protecting cultural property, the main principles of which were: the adoption of a law on the protection of monuments, the establishment of relevant government bodies, and the creation of a Code of Monuments. At the same time, there was a search for a temporary criterion for assessing monuments, i.e. establishing their minimum age. At the beginning of the 20th century, proposals were made to establish a more flexible criterion: 100 years from the moment of its creation for an antiquity monument and 50 years for a monument of art. In October 1911, the State Duma considered the bill “On the Protection of Antiquities.” However, it was not possible to finalize the project due to the revolutionary events of 1917.
The change of state power was marked by the adoption of several documents at once, indicating increased attention on the part of the new leadership of the country to the issues of preserving cultural values. Thus, in November 1917, the Petrograd Council of Workers' and Peasants' Deputies adopted an "Appeal on the need to preserve cultural heritage." A year later, in 1918, such fundamental documents as the Decree of the Council of People's Commissars "On Monuments of the Republic", "On the Prohibition of the Export and Sale Abroad of Objects of Special Artistic and Historical Significance" and the Decree of the Council of People's Commissars "On Registration, Admission to registration and protection of monuments of art and antiquities in the possession of private individuals, societies and institutions."
On April 11, 1983, the People's Commissariat for Foreign Affairs sent a dispatch to all embassies in Moscow with the following content: “The Protocol Department of the People's Commissariat for Foreign Affairs has the honor to draw the attention of members of the diplomatic corps to the following: The Soviet government notes a significant leakage abroad of antiques and art objects of artistic value for the Soviet Union. Therefore, the Main Customs Administration has now been ordered to issue permits for the export of such things in strict accordance with the instruction of the Main Customs Administration No. 120 dated September 28, 1928, a copy is attached...”
The result of the “pre-perestroika” period of formation of domestic legislation on culture and cultural values was the adoption of numerous regulatory documents that formed the legal basis for the legislation of the USSR and union republics on the protection of cultural property, which included the RSFSR Law of December 15, 1978 “On the Protection and Use historical and cultural monuments."
To date, the Russian Federation has adopted more than 15 regulatory and legal acts regulating the movement of cultural property across the customs border of the Russian Federation, the main one of which is the repeatedly mentioned Law of the Russian Federation of April 15, 1993 No. 4804-1 “On the export and import of cultural property” . The law is aimed at protecting cultural property from illegal export, import and transfer of ownership, and is also intended to promote the development of international cultural cooperation. This Law determines the creation of the Federal Service for the Preservation of Cultural Property, which is currently the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (Rosokhrankultura). The structure of this Federal Service also includes 13 territorial departments by district. These structures are endowed with the right to make decisions when exporting cultural property and the right to conduct special registration when importing cultural property.
Thus, the issues of preserving the cultural heritage of our country have been relevant for many centuries, regardless of the political regimes and ideologies that prevailed in a particular historical period in Russia.
1.4 State regulatory authorities and control over the export and import of cultural property
Preserving cultural heritage and transferring it to future generations is one of the priorities of every state. Various state authorities, law enforcement and security agencies, public and non-governmental organizations for the protection of cultural heritage take part in the preservation of the cultural heritage of Russia, such as:
Ministry of Culture of the Russian Federation;
Ministry of Internal Affairs of the Russian Federation;
Federal Service for Supervision of Compliance with Legislation in the Field of Protection of Cultural Heritage;
Federal Security Service of the Russian Federation;
Border Service of the Federal Security Service of the Russian Federation;
Federal Customs Service of the Russian Federation and its divisions;
Regional government bodies exercising management in the field of culture of the constituent entities of the Russian Federation;
Municipal bodies exercising management in the field of culture;
Museums, art galleries, archives, libraries, exhibition centers;
Scientific research institutes;
Higher and secondary specialized educational institutions;
Unions of artists and other creative persons, associations of collectors.
The Government of the Russian Federation has established that one of the functions of the Ministry of Culture is the creation of normative and legal acts on the issues of preserving cultural heritage sites, as well as on their state protection. To carry out this function, the Ministry includes the Department of Cultural Heritage and Fine Arts.
The Ministry of Culture also has jurisdiction over the executive body responsible for the protection of cultural property - the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (hereinafter referred to as Rosokhrankultura). Rosokhrankultura carries out its activities directly and through its territorial bodies in interaction with other federal executive authorities, executive authorities of the constituent entities of the Russian Federation, local governments, public associations and other organizations. The powers of Rosokhrankultura and its territorial bodies, in particular, include:
Exercising state control over the export and import of cultural property;
Drawing up a list of cultural property subject to the Law, the export of which is carried out on the basis of certificates for the right to export cultural property from the territory of the Russian Federation;
Making decisions on the possibility of export or temporary export of cultural property;
Issuance of certificates to legal entities and individuals for the right of their export and temporary export;
Registration of cultural property imported and temporarily imported into the territory of the Russian Federation;
Concluding agreements on the return of exported cultural property with persons applying for their temporary export;
Ensuring the examination of cultural property declared for export and temporary export, as well as when they are returned after temporary export.
An important role in regulating this process on the territory of our state is assigned to the Federal Customs Service of the Russian Federation, regional customs departments, customs houses, and customs posts. Customs authorities ensure compliance with legislation regarding control over the procedure for moving cultural property across the customs border of the Russian Federation, while interacting with the Ministry of Culture of the Russian Federation, Rosokhrankultura or its territorial departments for the protection of cultural heritage.
The competence of customs authorities includes the suppression of illegal trafficking of cultural property across the customs border. If it is necessary to use specialized equipment and special knowledge for customs clearance of certain types of goods, the Federal Customs Service of Russia has the right to establish certain customs authorities for declaring such goods in order to ensure the effectiveness of control over compliance with the customs legislation of the Russian Federation, in particular this applies to the movement of cultural property.
A separate task of the Federal Customs Service of Russia, represented by the relevant regional customs authorities, in relation to the issue of cultural property is to create a “specialized service” that exercises control over the procedure for the export and import of cultural property at customs checkpoints across the state border. In addition, departments have been created within operational customs to combat particularly dangerous types of smuggling, one of whose tasks is to prevent possible crimes involving the loss of cultural property.
Along with the Ministry of Culture, Rosokhrankultura and the Federal Customs Service of Russia, other government agencies mentioned above are also involved in the preservation of the country’s cultural heritage. The large number of departments dealing with this issue is determined by the specifics of the object under consideration: the exchange of cultural values for the purposes of education, science and culture expands knowledge about human civilization, enriches the cultural life of all peoples and causes mutual respect and understanding between countries. It is important to note that cultural values, being one of the main elements of civilization and culture of peoples, acquire their true value only if their history and origin are precisely known.
2. Analysis of the modern system of customs regulation of the movement of cultural property by individuals across the customs border of the Russian Federation
All goods transported across the customs border of the Russian Federation are subject to customs clearance and customs control in the manner and under the conditions established by the Customs Code of the Customs Union, regardless of the form in which they are declared: oral or written. The declarant has the right to independently choose the form of declaration of information about the goods, however, the Federal Customs Service has established a certain list of goods that are subject to mandatory written declaration when moving them by individuals for personal use. Along with such goods as narcotic drugs, psychotropic substances, nuclear and radioactive materials, precious metals and stones, cultural valuables are also subject to mandatory written declaration, regardless of whether they are transported in accompanied baggage or travel separately. The need for written declaration of such goods is, first of all, due to the fact that they are included in the lists of goods restricted for import and (or) export established by the Government of the Russian Federation; accordingly, their movement requires various permits issued by the relevant regulatory authorities.
This chapter will provide a detailed analysis of the legislative framework of the Russian Federation, as well as international documents regulating legal relations related to the movement of cultural property by individuals across the customs border of Russia. The basic document regulating the procedure for the movement of cultural property is the Law of the Russian Federation dated April 15, 1993, which was repeatedly mentioned in Chapter 1. No. 4804-1 “On the export and import of cultural property” (hereinafter referred to as the Law), in pursuance of which most of the regulatory legal acts that make up the current legislation on the movement of cultural property have been adopted.
2.1 The procedure for the export and temporary export of cultural property by individuals from the territory of the Russian Federation
The export of cultural property is understood as “the movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of the Russian Federation, without the obligation to re-import it.” Thus, individuals, when traveling across the customs border of the Russian Federation, can export for any purpose cultural assets located on its territory, without the obligation to re-import them, subject to compliance with the requirements and restrictions established by law. One of these restrictions is the list of categories of cultural property, the export of which from the territory of the Russian Federation is prohibited, regardless of the provision of certain permits. Such items include:
- “movable items of historical, artistic, scientific or other cultural value and classified, in accordance with current legislation, as particularly valuable objects of the cultural heritage of the peoples of the Russian Federation, regardless of the time of their creation;
Movable items, regardless of the time of their creation, protected by the state and included in security lists and registers in the manner established by the legislation of the Russian Federation;
Cultural property permanently stored in state and municipal museums, archives, libraries, and other state repositories of cultural property of the Russian Federation. By decision of authorized government bodies, this rule may be extended to other museums, archives, and libraries;
Cultural assets created more than 100 years ago"
A ban on export for other reasons is not allowed, therefore, subject to the provision of a permit, any cultural value that does not fall into the categories of the above items can be freely exported from the territory of the Russian Federation.
The main and only document on the basis of which cultural property is passed through the customs border is the Certificate for the right to export cultural property (hereinafter referred to as the Certificate), issued by the Federal Service for Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (hereinafter referred to as Rosokhrankultura) or its territorial organs. The form of the Certificate is established by the Decree of the Government of the Russian Federation dated April 27, 2001. No. 322 “On approval of the Regulations on the examination and control of the export of cultural property” and is given in Appendix B. Certificates have 8 degrees of protection (at the security level), accounting series and number and are strict reporting documents. The registration and storage of these forms is carried out by the Ministry of Culture of the Russian Federation, and information about the issued Certificates is mandatory entered into the relevant registers.
The basis for making a decision on the possibility of exporting cultural property and, accordingly, issuing a Certificate are the results of the examination.
The examination of cultural property is carried out on the basis of the Decree of the Government of the Russian Federation dated April 27, 2001. No. 322 “On approval of the Regulations on the examination and control of the export of cultural property” and is carried out by authorized specialists from museums, archives, libraries, restoration organizations, as well as other freelance specialists certified in accordance with the established regulations.
To conduct an examination, the owner of cultural property (the person authorized by him) submits an application to Rosokhrankultura or its territorial bodies. According to the procedure established by the Government, it contains information about the owner of cultural property, the basis for his right of ownership of cultural property, as well as their description. The following are attached to the application:
A list with a description of cultural property, if the number of items is more than two (in triplicate);
3 photographs of each cultural property measuring at least 8x12 centimeters;
Documents certifying the value of cultural property;
A copy of an identification document of a citizen of the Russian Federation outside the Russian Federation, or a document proving the identity of a citizen or national of a foreign state on the territory of the Russian Federation.
The application and the documents attached to it are registered in a special journal, and the applicant is given a notification of receipt of the application indicating its registration number. If during the review of documents it is discovered that the applicant does not have the right to export cultural property, then Rosokhrankultura or its territorial bodies refuse to issue a Certificate. If circumstances indicating the illegality of possession of cultural property are identified, Rosokhrankultura and its territorial bodies provide the relevant information and necessary documents to law enforcement agencies.
The duration of the examination of cultural property depends on the complexity of the expert work, but as a general rule it should not exceed 30 days. If necessary, cultural property, with the consent of the applicant, may be subjected to additional technological research in museum, archival and restoration institutions of the Ministry of Culture of the Russian Federation or the Federal Archive Service of Russia. In this case, the period for conducting the examination by decision of Rosokhrankultura or its territorial bodies may be extended, but not more than for another 30 days.
The result of the examination is an expert opinion in written form, which is issued on the basis of a comprehensive analysis of cultural property, determining their authenticity, authorship, name, place and time of creation, material and technique of execution, recording dimensions, weight, distinctive features, state of preservation, as well as review of submitted documents. It contains reasonable conclusions regarding the possibility or impossibility of exporting the presented items and proposals for their valuation, based on their market value. If the applicant does not agree with the expert opinion, cultural property is submitted for consideration to the State Expert Commission of the Ministry of Culture or the Central Expert Review Commission of the Federal Archive Service. The above-mentioned commissions, in turn, based on a comprehensive analysis of the cultural values and materials submitted for consideration, make a decision on agreement or disagreement with the expert opinion.
After receiving the expert opinion, the official of Rosokhrankultura or its territorial bodies responsible for issuing the Certificate checks the presence of cultural property declared for export in the "Electronic registration and search automated system for registering cultural property lost during the Second World War, stolen, illegally exported from Russian Federation, as well as those not subject to export from the Russian Federation (hereinafter referred to as ERPAS)." If the results of an inspection of cultural property declared for export provide grounds for including it in the ERPAS, the examination materials are transferred to the relevant government bodies, regardless of the consent of the person wishing to export these items.
The decision on the possibility of exporting cultural property is made by the deputy head of Rosokhrankultura or its territorial bodies and is formalized by an order specifying the official responsible for issuing the Certificate. It is issued in three copies: a copy for the applicant, a copy for customs and a copy that is stored in the archives of Rosokhrankultura. The Certificate is accompanied by a bound and sealed list and photographs of cultural property permitted for export, certified by the signature of an authorized official. Providing a certified list of cultural property and their photographs is due to the fact that when carrying out customs control and customs clearance at the border, officials need to identify the cultural property submitted for registration with the permit that was issued for it.
The examination may also establish that the items declared for export from the territory of the Russian Federation are not cultural values, but cultural items of serial and mass production or modern souvenirs. In accordance with the law, cultural items are not required to provide any permits and are not subject to restrictions established by the Law. In this case, Rosokhrankultura or its territorial body issues a certificate confirming that the named items are cultural items, are not registered with the state, and a Certificate is not required for their export. The certificate form is provided in Appendix B.
Since cultural items are not subject to declaration in writing, a certificate is presented at the request of a customs official if he has doubts that the goods declared for export are not cultural property. However, according to the Customs Code of the Customs Union, an individual has the right, at his own request, to declare in writing the goods he moves across the customs border, even if they are not subject to mandatory written declaration. In this case, indicating cultural items and the availability of a certificate and its details will be legal.
When filling out the Passenger Customs Declaration (Appendix D), in clause 3.4 you must make a note about the presence of cultural property. On the reverse side, in clause 4.1, the name, description of the distinctive features of cultural property, number and date of issue of the certificate for the right to export them are indicated, indicating the authority that issued the document, quantity in figures and words, as well as value in national currency, euros or dollars USA.
When filling out a cargo customs declaration, the number and date of issue of the certificate for the right to export cultural property is indicated in column 44 “Additional information / Submitted documents / Certificates and permits” under number 6.
Thus, an individual exporting cultural property must present to the customs authority:
International passport;
Items related to cultural property;
2 copies of the certificate for the right to export (a copy for customs and a copy for the applicant);
A list of exported items of cultural property, certified by the seal and signature of an authorized person of Rosokhrankultura;
A set of photographs for each item, also certified by the seal and signature of an authorized person of Rosokhrankultura;
Completed customs declaration;
After accepting the customs declaration, a customs official carries out customs inspection of exported cultural property. The customs authority has the right to conduct customs inspections even in the absence of the declarant if there is a real threat to the preservation of cultural property. The purpose of customs inspection is to identify exported cultural property with the information contained in the certificate. The customs official must check the authenticity of the documents provided; on both copies of the certificate (Appendix B), in the “Customs Mark” column, put the stamp “Release allowed” and an imprint of a personal numbered seal, or make the entry “Export allowed” with the date and personal numbered stamp . If customs clearance is carried out at the internal customs office, the customs inspector makes the following entry: “Cleared”, with the date and personal number stamp, and marks on the certificate are affixed at the customs office at the border.
The “applicant’s copy” of the certificate is handed over to the person who has passed customs control. A “copy for customs” of the certificate with the documents attached to it remains in the files of the customs authority.
In cases where it is not possible to accurately identify a cultural value (or an item of cultural significance) with the data specified in the relevant documents, or the authenticity of the executed documents is in doubt, customs officials may invite an expert from the territorial department for the preservation of cultural values to conduct a visual examination or performing art historical operations.
Individuals of the Russian Federation, when traveling across the customs border, can also temporarily export cultural property. Temporary export of cultural property is the movement across the customs border of the Russian Federation of cultural property located on its territory, with the obligation to re-import it within a specified period.
In accordance with the Customs Code, temporary export is permitted provided that the temporarily exported goods can be identified by customs authorities upon their re-import. Another condition of this customs regime is that temporarily exported cultural property cannot be alienated, transferred for use, possession or disposal to other persons.
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Introduction
1. The concept of cultural values
2. The procedure for issuing permits and customs control over the export of cultural property
2.1 Example from judicial practice
3. Customs control over the temporary export and import of cultural property
Peculiarities of importing films and videos into the territory of the Russian Federation
Application
Regulatory sources
References
Introduction
The movement of cultural property across the customs border is regulated by the Law of the Russian Federation “On the Export and Import of Cultural Property”, which was further developed by the State Customs Committee of November 2, 1993 N01-13/10907 “On the Export of Cultural Property”.
When applying this law in practice, customs officials face many problems. Everything related to control over the movement of cultural property causes a negative reaction. This is due to objective difficulties in classifying transported items as cultural property. To make a clear conclusion about the presence of signs characterizing cultural values, knowledge in the field of art, history, and archeology is required; such knowledge is fully possessed only by specialists in a specific field of knowledge. Customs officials cannot have such deep knowledge and are forced to resort to the services of specialist experts every time, since erroneous conclusions about the cultural value of an item can cause complaints from those moving them, with all the ensuing consequences. This usually takes a long time and delays the customs clearance and control process. In certain cases, such delays also lead to conflicts and complaints.
An equally important obstacle to effective and high-quality control over the movement of cultural property is the imperfection of the regulatory framework. In pursuance of the Law on the Import and Export of Cultural Property, a number of regulations had to be adopted (the law was adopted 5 years ago). The Ministry of Culture has not yet adopted the Regulations on the procedure for conducting state examination and control over the export of cultural property. The procedure for customs control and special registration of imported cultural goods has not been determined (such a procedure should be developed by the Ministry of Culture together with the State Customs Committee).
Still active regulations Soviet period. According to Letter of the State Customs Committee of the Russian Federation dated July 8, 1996 N 01-15/11998 “On the export of cultural property”, before the approval of a new procedure for entry and new lists of items classified as cultural property, customs authorities must be guided by the order of the USSR Ministry of Culture dated March 23, 1987 N 120, as amended on December 2, 1988, “On the procedure for controlling the export of cultural property from the USSR.”
1. The concept of cultural values
In accordance with Article 6 of the Law, cultural values are understood as movable objects of the material world located on the territory of the Russian Federation, namely:
· cultural values created by individuals or groups of individuals who are citizens of the Russian Federation;
· cultural values that are important for the Russian Federation and created on its territory by foreign citizens and stateless persons living on the territory of the Russian Federation;
· cultural values discovered on the territory of Russia;
· cultural values acquired by archaeological, ethnological and natural science expeditions with the consent of the competent authorities of the country where these values originate;
· cultural property acquired as a result of voluntary exchanges;
· cultural property received as a gift or legally acquired with the consent of the competent authorities of the country where the property originates.
The following categories of items belong to cultural property:
1) historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and activities of outstanding personalities (state, political, public figures, thinkers, scientists, literature, art);
2) objects and their fragments obtained as a result of archaeological excavations;
3) artistic values, including:
Paintings and drawings are entirely handmade on any basis and from any materials;
Original sculptural works from any materials, including reliefs;
Original artistic compositions and installations from any materials;
Artistically designed religious objects, in particular icons;
Engravings, prints, lithographs and their original printed forms;
Works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
Products of traditional folk arts and crafts;
Components and fragments of architectural, historical, artistic monuments and monuments of monumental art;
4) ancient books, publications of special interest (historical, artistic, scientific and literary), separately or in collections;
5) rare manuscripts and documentary monuments;
6) archives, including photo, phono, film, video archives;
7) unique and rare musical instruments;
8) postage stamps, other philatelic materials, separately or in collections;
9) ancient coins, orders, medals, seals and other collectibles;
10) rare collections and samples of flora and fauna, items of interest to such branches of science as mineralogy, anatomy and paleontology;
11) other movable items, including copies that have historical, artistic, scientific or other cultural significance, as well as those taken under state protection as historical and cultural monuments.
Modern souvenirs and cultural objects of serial and mass production are not cultural values.
2. The procedure for issuing permits and customs control over the export of cultural property
The Law “On the Export and Import of Cultural Property” establishes that the export of archives, unique and rare musical instruments, and ancient books (the full list is given above) outside the Russian territory is permitted by the customs authority only if there is a certificate for the right to export cultural property.
At the same time, the following categories of cultural property are not subject to export from the Russian Federation:
Movable items of historical, artistic, scientific or other cultural value and classified, in accordance with current legislation, as particularly valuable objects of the cultural heritage of the peoples of the Russian Federation, regardless of the time of their creation;
Movable items, regardless of the time of their creation, protected by the state and included in security lists and registers in the manner established by the legislation of the Russian Federation;
Cultural values have always been the object of close attention from people, both different nationalities and different segments of the population, regardless of their standard of living, political or social status.
For some, these are objects to satisfy their cultural needs, for others, they are a way of existence or a means of making money.
Satisfying cultural needs is both the enjoyment of already created works of art and the ability to create, store, collect, study, etc. a work of art.
Currently, various terms are used to apply to cultural objects: cultural heritage, cultural historical monuments and cultural values.
Cultural heritage forms a set of material and spiritual cultural values of other eras that are subject to preservation, revaluation and use of existing achievements.
In Article 3 of the Federal Law of the Russian Federation of June 23 No. 115-FZ “Fundamentals of Legislation on Culture,” cultural values are defined as:
“...moral and aesthetic ideals, norms and patterns of behavior, languages, dialects and dialects, national traditions and customs, historical toponyms, folklore, arts and crafts, works of culture and art, results and methods of scientific research into cultural activities that have historical and cultural the significance of buildings, structures, objects and technologies, historically and culturally unique territories and objects.”
The concept of “cultural values” covers both material objects and spiritual human activity. Cultural value may include means of labor and its material products, works of spiritual creativity, philosophical ideas, scientific achievements, traditions, moral and legal norms, etc.
Article 7 of the Law of the Russian Federation “On the Export and Import of Cultural Property” lists the categories of items that fall under the scope of this Law:
Historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and work of outstanding personalities (statesmen, political public figures, thinkers, scientists, literature, artists);
Objects and their fragments obtained as a result of archaeological excavations;
artistic values, including:
Paintings and drawings are entirely handmade on any basis and from any materials;
Original sculptural works from any materials, including reliefs;
Original artistic compositions and installations from any materials;
Artistically designed religious objects, in particular icons;
Engravings, prints, lithographs and their original printed forms;
Works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
Products of traditional folk arts and crafts;
Components and fragments of architectural, historical artistic monuments and monuments of monumental art;
Antique books, publications of special interest (historical, artistic, scientific and literary), separately or in collections;
Rare manuscripts and documentary monuments;
Archives, including photo, film, video archives;
Unique and rare musical instruments;
Postage stamps, other philatelic materials, separately or in collections;
Ancient coins, orders, medals, seals and other collectibles;
Rare collections and specimens of flora and fauna, items of interest to such branches of science as mineralogy, anatomy and paleontology;
Other movable items, including copies, that have historical, artistic, scientific or cultural significance, as well as those taken under state protection as historical and cultural monuments.
The variety of terms used is explained by the complexity that arises when using concepts generally accepted in relation to cultural values in relation to customs legislation. This is the very line beyond which a unique creation expresses the creativity of the people, their language, customs, religion, etc. becomes, from the point of view of the letter of the law, “goods transported across the customs border of the Russian Federation.”
It must be emphasized that values (cultural values), from the point of view of the international classification used in assessing national wealth according to the system of national accounts, are one of the components of non-financial production material assets. In this case, cultural values can act as objects of significant value that do not decrease over time, which themselves are not directly involved in material production, but at the same time they can be reserves of value.
National wealth
Non-financial assets Financial assets
Non-financial assets (in the system of national accounts)
Material Intangible
1. Fixed assets 1. Geological exploration costs
Production 2. Mat. negotiable assets 2. Originals lit. and artist production
3. Values 3. Computer software
1. Land 1. Licenses, patents, know-how
2. Subsoil wealth 2. Lease agreements
Non-production 3. Non-cultivation
Resources (forestry, fisheries,
It should be noted that customs legislation does not imply the classification of cultural property as a separate category of goods from the point of view of customs clearance and, thus, from this side, cultural property becomes a commodity, like any movable property moved across the customs border of the Russian Federation.
The product range contains product group 97 – “Works of art, collectibles and antiques” and proposes a classification of cultural property into six product headings:
9701100000 – Paintings, drawings and pastels;
9701900000 – Other;
9702000000 – Originals of engravings, prints and lithographs;
970300000 – Original sculptures and figurines from any materials;
9704000000 – Postage stamps or state duty stamps, postage marks, etc.;
9705000000 – Collections and collectibles in zoology, botany, mineralogy, anatomy, history, archaeology, paleontology, ethnography, or numismatics;
9706000000 – Antiques over 100 years old.
This classification involves the assignment of cultural property to a separate product group.
At the same time, the customs authorities of the Russian Federation are entrusted with the functions of suppressing illegal trafficking across the customs border of objects of artistic, historical and archaeological property of the peoples of Russia and foreign countries. In addition, control over the legal movement of cultural values (provided that they have a material and spatial form of embodiment) involves separating them into separate category goods.
This circumstance is due to the fact that in the traditional understanding, a commodity is a product of human labor created to make a profit through sale or exchange. Naturally, cultural values can act in this capacity, but the previously given definitions related to cultural values clearly contradict economic essence goods, as can be seen from the preamble part of the law “On the export and import of cultural property”.
In addition, conditionally falling under the definition of “goods” as “any movable property...moved across the customs border of the Russian Federation” (the Law “On Customs Tariffs”), cultural property does not fall under the scope of this law. Based on the disposition, the law “On Customs Tariffs” cannot be applied to the regulation of legal relations arising from violations or offenses in the field of control over the export and import of cultural property.
This law, being legislative act direct action, does not establish procedural features and subjects of responsibility in the area of violations associated with non-compliance with the established procedure for the movement of cultural property across the customs border.
Thus, by correlating the object “goods” and the object “cultural value”, we can conclude that the Labor Code does not provide for the object of an offense - the procedure for registering cultural property moved across the customs border of the Russian Federation, which also confirms the need to separate cultural property into a separate category goods.
Based on the foregoing, it is necessary to determine the delimitation of the scope of application of administrative and criminal legislation in relation to those cases when the order of movement is violated, including the application of customs regimes, the procedure for customs clearance and customs control over the movement of cultural property across the customs border of the Russian Federation.
It is also necessary to emphasize the essential feature that lies in determining the customs value during customs clearance of cultural property and placing them under the temporary “import/export” regime. According to the Law “On Customs Tariffs”, the customs value is declared by the declarant to the customs authority of the Russian Federation. The procedure for determining the customs value of goods is based on general principles customs assessment adopted in international practice, and refers to goods imported into the customs territory of the Russian Federation and is determined by the Government of the Russian Federation based on the provisions of the law “On Customs Tariffs”. The customs value of exported goods is also established by the Government of the Russian Federation.
When determining customs value, the methods established by this Law are used.
It is significant that none of the six methods can be applied in the case where the goods are cultural property.
Naturally, the very concept of “cultural values” or “works of art” implies a careful and attentive attitude towards them both on the part of workers in the “cultural” sphere and on the part of customs authorities, who are accustomed mainly to dealing with “ordinary” goods , i.e. "a product of labor created for sale."
It must be said that customs clearance of cultural property occurs in accordance with the procedure established for these purposes, which is regulated by the Law on the Export and Import of Cultural Property, customs legislation and other relevant legislative acts of the Russian Federation.
The fiscal function of customs authorities when registering cultural property is reduced to a minimum, since customs legislation currently provides the opportunity for duty-free export of works of art that are not antiques or are not national property. At the same time, the presence of a value added tax on works of art significantly limits the possibility of importing cultural property into Russia. On the one hand, this prevents the import of so-called works into Russian territory. “pseudocultures”, on the other hand, leads to great difficulties in case of acquisition of true masterpieces by Russian museums and other organizations. However, the possibility of importing cultural property with VAT exemption exists and is used in some cases by Russian museums to purchase or accept works of art as gifts. The decision on exemption from VAT in such cases is made separately each time and is within the competence of the State Customs Committee of the Russian Federation.
1.2. Specifics of application of the customs regime “temporary import/export” in relation to cultural property (current legislative framework)
1.2.1. Government Decree No. 599 dated August 16, 2000 “On the list of goods temporarily imported (exported) with full conditional exemption from customs duties and taxes”
Any customs regime under which goods may be placed has its own characteristics associated with various factors. This may include the specifics of taxation, storage conditions in temporary storage warehouses, features of the application of non-tariff regulation measures, liability for various types of violations of customs rules related to the applied customs regime and category of goods. Features may also include different categories of goods, the possibility or impossibility of applying certain customs regimes to them, reporting forms, transportation features, methods of control over customs value and exchange control. The possibility or impossibility of providing preferences and much more.
The “temporary import/temporary export” regime also has its own characteristics. These features are associated, first of all, with the categories of goods, the placement of which under the specified regime is possible or impossible, with the peculiarities of taxation when placing goods under this regime and with the placement of temporarily imported/exported goods under other customs regimes.
The customs regime “temporary import/export” is regulated by the Customs Code of the Russian Federation. This regime involves the temporary presence of goods on the territory of Russia or abroad with their subsequent export or import within the time limits established by law and with possible application benefits for customs duties.
Certain categories of goods, for example cultural property, the import or export of which is carried out temporarily, require the application of other legislative acts (Federal Law on the Export and Import of Cultural Property), the application of non-tariff regulation measures, various documents, not required when applying these regimes to other goods.
Let's consider the most general issues related to the application of the specified customs regime.
The main features of the application of this mode include the requirements Russian legislation to categories of goods that can be placed under the temporary import/export regime. These requirements are set out in Government Decree No. 599 of August 16, 2000 “On the list of goods temporarily imported (exported) with full conditional exemption from customs duties and taxes.”
An essential fact is that items classified in product group 97 fall under clause 17 of section III of the list of goods approved by Decree of the Government of the Russian Federation of August 16, 2000 No. 599, temporarily imported (exported) with full conditional exemption from customs duties. duties and taxes:
goods that are works of art, collectibles, if such goods remain the property of a foreign (if exported, Russian) person; books, periodicals, publications and documents related to education, science, and culture.
The basic requirements for the procedure for placing goods under the “temporary import/export” regime also apply to product group 97. These requirements, as already noted, include, first of all, the possibility of including goods in the list approved by the Decree of the Government of the Russian Federation dated 16 August 2000 No. 599, obligation to re-export/import goods, non-transferable ownership of goods, the possibility of their reliable identification, compliance with the terms of temporary import/export and some others.
It must be emphasized that customs clearance fees are paid for each case of declaration, that is, both when the “temporary import/export” regime is opened, and when it is closed by any other customs regime. An exception is cases of registration of cultural property temporarily exported by state and municipal museums, archives, other state repositories, as well as libraries, which are in their funds in permanent storage, for exhibiting, imported back after exhibitions, vernissages and similar events, as well as temporarily imported into the address of these organizations of cultural property for the purpose of exhibiting and exporting back after exhibitions, vernissages and similar events (Instructions on the collection of customs duties for customs clearance).
An application-obligation for the re-export/import of goods is submitted to the customs authority that processes temporarily imported/exported goods. The commitment statement contains details legal entity, information about goods, purposes and circumstances of temporary import/export, terms of import/export. It is also confirmed that you are familiar with the requirements of the Customs Code of the Russian Federation, which provide for liability for violation of this obligation (Appendix 1).
It must be emphasized that these forms of Statement-Obligations, approved by Order of the St. Petersburg Customs of September 24, 1997 No. 150, provided when goods are placed under the customs regime of “temporary import/export” in their content do not meet the requirements for the movement procedure, customs control and customs clearance of cultural property placed under the specified customs regime.
Currently, the management of St. Petersburg Customs is considering forms of Statement-Obligations that most fully comply with the requirements for the basic conditions for placing cultural property under the temporary import/export regime (Appendix 2.3).
A similar problem exists when it is necessary to extend the terms of temporary import/export of cultural property. The application - obligation used to extend the deadlines for “regular” goods is the form presented in Appendix 4. The most acceptable form of the Application - obligation to extend the terms of temporary import/export for cultural property should be in the form presented in Appendix 5.
In addition, when extending the terms of temporary export, a written permit from the Department for the Preservation of Cultural Property of the Ministry of Culture of the Russian Federation is required, a document establishing an insurance assessment of cultural property, guarantees from the government authorities of the receiving party (country of destination) regarding the safety and return of cultural property, a document confirming the commercial insurance of temporarily exported cultural property.
It must be emphasized that violation of the terms of temporary import or export, if return export or import is mandatory, implies liability for violation of customs rules provided for by the Customs Code of the Russian Federation. A case of violation of customs rules is opened immediately if the goods on the day of expiration of the period for temporary export or import are not presented for re-import, export or are not declared for placement under another customs regime.
In case of violation of the terms of temporary export, if the exported goods are cultural values and their return within the established time frame is mandatory, liability arises in accordance with Article 190 of the Criminal Code of the Russian Federation. This act is qualified as an independent crime, committed immediately at the moment of expiration of the temporary export period.
It must be emphasized that the disposition of the Customs Code of the Russian Federation is of an alternative nature only in relation to goods and the presence or absence of signs of smuggling.
The Labor Code of the Russian Federation qualifies the failure to return to the customs territory of the Russian Federation objects of artistic, historical and archaeological property of the peoples of the Russian Federation and foreign countries exported outside its borders, if such return is mandatory, as one of the types of criminal smuggling.
Paragraph 2 of Article 56 of the Law of April 15, 1993 “On the export and import of cultural property” also qualifies this act as smuggling and refers to the criminal legislation of the Russian Federation.
Article 190 of the Criminal Code of the Russian Federation qualifies this act as failure to return within the prescribed period to the territory of the Russian Federation objects of the artistic, historical and archaeological property of the peoples of the Russian Federation and foreign countries exported outside its borders, if such return is mandatory in accordance with the legislation of the Russian Federation and defines it as an independent crime .
The direct object of this crime is the procedure for the export and return of cultural property. The subject of this crime is cultural assets, which are understood as movable objects of the material world, defined by articles 6.7 of the Law of the Russian Federation “On the export and import of cultural assets.” In addition, the concept of “cultural values” is disclosed in Art. 3 “Fundamentals of legislation on culture” dated 09.10.92, in Art. 3 of the Federal Law of May 26, 1996 “On the Museum Fund of the Russian Federation and Museums of the Russian Federation.” At the same time, Art. 5 of the Law “On Customs Tariffs” and Art. 18 of the Customs Code of the Russian Federation, cultural values can be classified as goods as “any movable property”.
The sanction provided for by the Labor Code of the Russian Federation is a fine in the amount of one hundred to two hundred percent of the value of the goods that are the direct objects of the offense.
At the same time, the Labor Code of the Russian Federation explains that liability for scientific and technological progress occurs if the offense does not entail criminal liability. The same article notes that criminal prosecution does not exempt from responsibility for NTP, but “ the period for imposing a penalty is calculated from the moment the customs authority of the Russian Federation receives a decision to refuse or to initiate a criminal case.” .
Thus, on the day of expiration of the re-import period specified in the statement of obligation, in the absence of permission to extend the validity of the certificate for the right to temporary export of cultural property and with a real opportunity to return cultural property to the territory of the Russian Federation, this act is a completed crime for which responsibility comes in accordance with the sanction provided for in Art. 190 of the Criminal Code of the Russian Federation.
Clause 9 art. 117 of the Code of Criminal Procedure of the RSFSR classifies customs authorities as bodies of inquiry in cases of crimes under Art. 190 of the Criminal Code of the Russian Federation. According to Art. 119 Code of Criminal Procedure, “...if this crime is under investigation by different preliminary investigation bodies, the case is sent to the prosecutor to determine the body that will conduct the preliminary investigation.” In this particular case, Art. 126 of the Code of Criminal Procedure of the RSFSR, the obligation of a preliminary investigation is assigned to investigators from the FSB.
1.2.2. Law of the Russian Federation “On the export and import of cultural property”
the federal law Russian Federation dated April 15, 1993. No. 4804-1 is one of the main governing documents regulating the procedure for the export from the Russian Federation and import into the Russian Federation of cultural property. Together with other legislative acts of the Russian Federation, this Law is aimed at preserving the cultural heritage of Russia, protecting cultural values from illegal export, import and transfer of ownership of them.
The law is based on the principle of a single customs space and a single procedure for the export and import of cultural property throughout the Russian Federation, regardless of the form of ownership, as well as for all legal entities, individuals, officials and authorities.
The law provides for regulation of export from and import from the territory of the Russian Federation, as well as temporary export and temporary import of cultural property. The export of cultural property that does not fall under Article 9 of the current Law may be carried out in accordance with the decision on the possibility of their export, made by government bodies determined by the Law. It must be emphasized that the export and import of cultural property containing precious stones, precious metals, as well as types of weapons are regulated by other legislative acts of the Russian Federation. This is noted in Art. 20 and 21 of the Law. The procedure for the export and import of cultural property also applies to persons with diplomatic privileges and immunities.
Cultural property imported into the territory of the Russian Federation is subject to customs control and special registration in the manner established by the Federal Service for the Preservation of Cultural Property jointly with the State Customs Committee of the Russian Federation. It should be noted that the functions of the Federal Service have been transferred to the Department for the Preservation of Cultural Property of the Ministry of Culture of the Russian Federation.
When transiting cultural property through the territory of the Russian Federation, documents must also be provided confirming that these items are imported solely for the purpose of transit.
The Law pays attention to the temporary export and temporary import of cultural property. Temporary export and import of cultural property is carried out by museums, archives, libraries and other individuals and legal entities: for organizing exhibitions; for restoration work and scientific research; in connection with theatrical, concert and other artistic activities, as well as in other necessary cases.
Analyzing this section of the current Law, it should be emphasized that the illegal transfer of ownership of cultural property is prohibited. However, the export of cultural property can only be carried out by the legal owner of the items or by a person authorized by the owner in the manner prescribed by law.
The law considers several conditions for collecting a special fee for the right to export cultural property. Firstly, a fee paid by individuals and legal entities in cases where they receive a certificate for the right to export cultural property. Secondly, benefits are established for the payment of a special fee. And thirdly, a special fee is not charged if the export of cultural property is carried out directly by the author. It should be noted that the procedure for collecting a special fee has not currently been established. In accordance with the Law, interstate cooperation is established, and interstate agreements are concluded (Section 8) in order to prevent the illegal export, import of cultural property and the transfer of ownership of them. It also establishes disciplinary, administrative, and criminal liability for violation of legislation on the export and import of cultural property.
Law of the Russian Federation No. 4804-1 of April 15, 1993 “On the export and import of cultural property” was published in Rossiyskaya Gazeta No. 92 of May 15, 1993), aimed at protecting cultural property from illegal export, import and transfer of ownership on them and is also intended to contribute to the development of international cultural cooperation, mutual familiarization of the peoples of the Russian Federation and other states with each other’s cultural values.
The law is based on the principle of a single customs space and establishes uniform order export and import of cultural property throughout the Russian Federation, applies to all cultural property regardless of the form of ownership.
Export of cultural property- movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of the Russian Federation, without the obligation to re-import it.
Import of cultural property- movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of a foreign state, without the obligation to re-export it.
Temporary export of cultural property- movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of the Russian Federation, with the obligation to re-import it within a specified period.
Temporary import of cultural property- movement by any persons for any purpose across the customs border of the Russian Federation of cultural property located on the territory of a foreign state, with the obligation to re-export it within a specified period.
Collection of cultural property- a collection of homogeneous or heterogeneous objects selected according to a certain characteristic, which, regardless of the cultural value of each of them, when collected together have historical, artistic, scientific or other cultural significance.
Cultural values are understood as movable objects of the material world located on the territory of the Russian Federation, namely:
cultural property created by individuals or groups of individuals who are citizens of the Russian Federation;
cultural values that are important for the Russian Federation and created on the territory of the Russian Federation by foreign citizens and stateless persons living on the territory of the Russian Federation;
cultural values discovered on the territory of the Russian Federation;
cultural values acquired by archaeological, ethnological and natural scientific expeditions with the consent of the competent authorities of the country where these values originate;
cultural property acquired through voluntary exchanges;
cultural property received as a gift or legally acquired with the consent of the competent authorities of the country where the property originates.
historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and work of outstanding personalities (state, political, public figures, thinkers, scientists, literature, artists);
objects and their fragments obtained as a result of archaeological excavations;
artistic values, including:
paintings and drawings are entirely handmade on any basis and from any materials;
original sculptural works from any materials, including reliefs;
original artistic compositions and installations from any materials;
artistically designed religious objects, in particular icons;
engravings, prints, lithographs and their original printed forms;
works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
products of traditional folk arts and crafts;
components and fragments of architectural, historical, artistic monuments and monuments of monumental art;
antique books, publications of special interest (historical, artistic, scientific and literary), individually or in collections;
rare manuscripts and documentary monuments;
archives, including photo, phono, film, video archives;
unique and rare musical instruments;
stamps, other philatelic materials, separately or in collections;
ancient coins, orders, medals, seals and other collectibles;
rare collections and specimens of flora and fauna, subjects of interest to such branches of science as mineralogy, anatomy and paleontology;
other movable items, including copies that have historical, artistic, scientific or other cultural significance, as well as those taken under state protection as historical and cultural monuments.
This Law does not apply to modern souvenirs, cultural items of serial and mass production.
Export from the Russian Federation are not subject to the following categories of cultural property:
movable items of historical, artistic, scientific or other cultural value and classified, in accordance with current legislation, as particularly valuable objects of the cultural heritage of the peoples of the Russian Federation, regardless of the time of their creation;
movable items, regardless of the time of their creation, protected by the state and included in security lists and registers in the manner established by the legislation of the Russian Federation;
cultural property permanently stored in state and municipal museums, archives, libraries, and other state repositories of cultural property of the Russian Federation. By decision of authorized government bodies, this rule may be extended to other museums, archives, and libraries;
cultural values created more than 50 years ago, unless otherwise provided by this Law.
In accordance with international treaties of the Russian Federation and the legislation of the Russian Federation, cultural property illegally exported from its territory and illegally imported into its territory must be returned.
The Ministry of Culture of the Russian Federation, the State Archive Service of Russia, the State Customs Committee of the Russian Federation perform, within their competence, the functions of state bodies regulating the export and import of cultural property and control over the export and import of cultural property in accordance with the current legislation of the Russian Federation. The specially authorized body of state control over the export and import of cultural property is the Federal Service for the Preservation of Cultural Property, which carries out its tasks in cooperation with the Ministry of Culture of the Russian Federation, the State Archive Service of Russia, customs authorities, internal affairs bodies, and federal state security agencies of the Russian Federation. Federation, other law enforcement agencies. An Interdepartmental Council on Issues of Export and Import of Cultural Property is being formed as a collegial body on issues of export and import of cultural property.
The composition of the Interdepartmental Council on the export and import of cultural property and its regulations are approved by the Government of the Russian Federation in agreement with the Supreme Council of the Russian Federation.
Federal Service for the Preservation of Cultural Property:
compiles a list of cultural assets falling under the scope of this Law in the manner prescribed by the legislation of the Russian Federation;
makes decisions on the possibility of export, temporary export of cultural property;
provides an examination of cultural property declared for export, temporary export, as well as when they are returned after temporary export;
issues certificates for the right to export, temporary export of cultural property;
collects a special fee for the right to export, temporary export of cultural property;
exercises control over compliance with the rules of foreign economic activity related to cultural values;
carries out registration of imported and temporarily imported cultural property;
organizes widespread notification of the public in the Russian Federation and abroad about the facts of loss, loss, theft of cultural property;
takes measures provided for by the legislation of the Russian Federation and international treaties of the Russian Federation to restore the legal rights of owners of cultural property in the event of illegal export, import of cultural property and transfer of ownership of it.
The Interdepartmental Council on the Export and Import of Cultural Property makes decisions on applications for seizures and considers controversial issues arising in the application of this Law.
The State Customs Committee of the Russian Federation, through a specialized service, exercises control at customs points over the procedure for the export and import of cultural property established by this Law.
The examination of cultural property declared for export, temporary export, as well as returned after temporary export is carried out by specialists from museums, archives, libraries, restoration and research organizations and other specialists authorized by the Ministry of Culture of the Russian Federation and the State Archive Service of Russia.
State examination of cultural property is mandatory for cultural property declared for export.
The procedure for granting the right to export and import various types weapons that have historical, artistic, scientific or other cultural value are regulated by the Law and other relevant legislative acts of the Russian Federation.
Imported cultural property is subject to customs control and special registration in the manner established federal service for the preservation of cultural property jointly with the State Customs Committee of the Russian Federation.
In accordance with international treaties of the Russian Federation or in connection with requests from competent authorities of foreign states import cultural values in relation to which wanted, prohibited.
Such valuables are subject to detention with a view to their subsequent return to their rightful owners.
When transiting cultural property through the territory of the Russian Federation, the customs authorities of the Russian Federation are presented with a document indicating that cultural property is imported solely for the purpose of transit under the conditions determined by the customs legislation of the Russian Federation and international treaties of the Russian Federation.
Export of cultural property by sending to postal items is carried out in accordance with the rules established by this Law, the customs legislation of the Russian Federation and the communications charter in force on the territory of the Russian Federation.
A special fee is paid for the right to export cultural property. The procedure for establishing the amount and payment of a special fee, as well as exemptions from payment and benefits for payment are established by this Law and acts of the Government of the Russian Federation.
The examination of cultural property is carried out by specialists from museums, archives, libraries, restoration and research organizations, and other specialists who are freelance experts of the Ministry of Culture of the Russian Federation and (or) members of expert commissions of the Ministry of Culture of the Russian Federation, authorized by the Ministry of Culture of the Russian Federation and the Federal Archive Service of Russia. Federation or its territorial bodies for the preservation of cultural values (hereinafter referred to as territorial bodies). The results of the examination are the basis for the Ministry of Culture of the Russian Federation or its territorial bodies to make a decision on the possibility or impossibility of exporting or temporarily exporting cultural property from the territory of the Russian Federation. The examination of cultural property is carried out on a paid basis. The procedure for charging fees for conducting an examination and the criteria for determining its amount are approved in accordance with the established procedure by the Ministry of Culture of the Russian Federation in agreement with the Federal Archival Service of Russia. Funds received as fees for the examination of cultural property are taken into account as income received from business and other income-generating activities in accordance with the budget legislation of the Russian Federation.
These funds are used to reimburse expenses associated with the examination, including payment in accordance with the established procedure for the work of freelance experts, with the storage, recording and publication of information about cultural property donated to the Russian Federation, as well as detained or confiscated by customs or other law enforcement agencies. authorities of the Russian Federation, to take measures to establish the location, recover from someone else’s illegal possession and restore the legal rights of owners of cultural property in cases of illegal export, import and transfer of ownership of cultural property.
The examination of cultural property declared for export or temporary export from the territory of the Russian Federation is carried out at the request of the owner of cultural property or a person authorized by him, submitted to the Ministry of Culture of the Russian Federation or its territorial bodies.
The following are attached to the application:
a) a list with a description of cultural property if the number of items is more than two (in triplicate);
b) 3 photographs of each cultural property measuring at least 8x12 centimeters.
When exporting or temporarily exporting from the territory of the Russian Federation archival documents, printed publications, items of philately, numismatics, bonistics and faleristics, photographs are not required;
c) copies of documents confirming the legal entity’s ownership of cultural property exported from the territory of the Russian Federation (with the presentation of the originals);
d) documents certifying the value of cultural property;
e) a copy of an identity document of a citizen of the Russian Federation outside the Russian Federation, or an identity document of a citizen or subject of a foreign state on the territory of the Russian Federation, or a copy of a certificate of state registration of a legal entity;
f) in the case of temporary export of cultural property from the territory of the Russian Federation - documents provided for in Article 30 of the Law of the Russian Federation "On the Export and Import of Cultural Property".
The application and the documents attached to it are registered by the Ministry of Culture of the Russian Federation or its territorial bodies in the manner established by the Ministry in a special journal. The applicant is given a notification of receipt of the application indicating its registration number.
Identification during the consideration by the Ministry of Culture of the Russian Federation or its territorial bodies of documents submitted by the applicant of circumstances indicating that the applicant does not have the authority to carry out the export or temporary export of cultural property from the territory of the Russian Federation is grounds for refusing the applicant their export or temporary export . If circumstances are revealed that indicate the illegality of possession of cultural property declared for export or temporary export, the Ministry of Culture of the Russian Federation or its territorial bodies shall inform the relevant law enforcement agencies about these circumstances.
Based on the application (notice provided for in paragraph 15 of these Regulations) and the attached documents, the Ministry of Culture of the Russian Federation or its territorial bodies determine the feasibility and timing of submitting cultural property for examination or, in agreement with the owner (possessor), organizing the examination at the location of the cultural property. values. The period for conducting the examination of cultural property is established by the Ministry of Culture of the Russian Federation in agreement with the Federal Archive Service of Russia, depending on the complexity of the expert work and the volume of submitted materials, but should not exceed 30 days. If necessary, cultural property, with the consent of the applicant, may be subject to additional technological research in museum, archival and restoration institutions of the Ministry of Culture of the Russian Federation or the Federal Archive Service of Russia. In this case, the period for conducting the examination by decision of the Ministry of Culture of the Russian Federation or its territorial bodies may be extended, but not more than by 30 days.
The examination of cultural property returned after temporary export is carried out on the basis of a notice of return of such property submitted within 10 days by the owner of cultural property or his authorized person to the Ministry of Culture of the Russian Federation or its territorial bodies that issued the certificate for the right to temporary export of cultural property. The notice indicates the state of conservation of each cultural property after its return. Expert opinion(in writing) is made on the basis of a comprehensive analysis of cultural property, determining their authenticity, authorship, name, place and time of creation, material and technique of execution, recording dimensions (weight), distinctive features, state of preservation, as well as consideration of the submitted documents. The expert opinion must contain substantiated conclusions regarding the possibility or impossibility of exporting or temporarily exporting the presented cultural property from the territory of the Russian Federation and proposals for their assessment, based on their market value.
An expert opinion regarding cultural property returned after temporary export from the territory of the Russian Federation must contain substantiated conclusions regarding the state of their preservation after return. If, as a result of the examination, a change in the state of preservation of cultural property is identified, the Ministry of Culture of the Russian Federation or its territorial bodies that issued a certificate for the right to export cultural property, determine in the prescribed manner measures aimed at ensuring the restoration of the condition of damaged cultural property and the involvement of persons who ensured its safety , to liability provided for by the legislation of the Russian Federation.
Form of the certificate form for the right to export cultural property from the territory of the Russian Federation:
CERTIFICATE No.
for the right to export cultural property from the territory
Russian Federation
(last name, first name, patronymic of an individual or name of a legal entity)
for the right to export (permanent, temporary) cultural property: (underline as necessary)
A list of items on __ sheets is attached.
Photos of items in the amount of ___ pcs. attached
Cultural property is exported to
(the name of the country)
Purpose of export, period of export
(to be completed during temporary export)
Export is permitted based on the decision
(name of the government body that issued the certificate)
From " "_________200 No. ___________
(signature of the official of the state body that issued the certificate, his surname, initials)
" "_____________200 ____ g.___________________________
(date and place of issue of the certificate)
Cultural values have always been the object of close attention from people, both different nationalities and different segments of the population, regardless of their standard of living, political or social status.
For some, these are objects to satisfy their cultural needs, for others, they are a way of existence or a means of making money.
Satisfying cultural needs is both the enjoyment of already created works of art and the ability to create, store, collect, study, etc. a work of art.
Currently, various terms are used to apply to cultural objects: cultural heritage, cultural historical monuments and cultural values.
Cultural heritage forms a set of material and spiritual cultural values of other eras that are subject to preservation, revaluation and use of existing achievements.
In Article 3 of the Federal Law of the Russian Federation of June 23 No. 115-FZ “Fundamentals of Legislation on Culture,” cultural values are defined as:
“...moral and aesthetic ideals, norms and patterns of behavior, languages, dialects and dialects, national traditions and customs, historical toponyms, folklore, arts and crafts, works of culture and art, results and methods of scientific research into cultural activities that have historical and cultural the significance of buildings, structures, objects and technologies, historically and culturally unique territories and objects.”
The concept of “cultural values” covers both material objects and spiritual human activity. Cultural value may include means of labor and its material products, works of spiritual creativity, philosophical ideas, scientific achievements, traditions, moral and legal norms, etc.
Article 7 of the Law of the Russian Federation “On the Export and Import of Cultural Property” lists the categories of items that fall under the scope of this Law:
Historical values, including those related to historical events in the life of peoples, the development of society and the state, the history of science and technology, as well as those related to the life and work of outstanding personalities (statesmen, political public figures, thinkers, scientists, literature, artists);
Objects and their fragments obtained as a result of archaeological excavations;
artistic values, including:
Paintings and drawings are entirely handmade on any basis and from any materials;
- original sculptural works from any materials, including reliefs;
Original artistic compositions and installations from any materials;
Artistically designed religious objects, in particular icons;
Engravings, prints, lithographs and their original printed forms;
Works of decorative and applied art, including artistic products made of glass, ceramics, wood, metal, bone, fabric and other materials;
Products of traditional folk arts and crafts;
Components and fragments of architectural, historical artistic monuments and monuments of monumental art;
Antique books, publications of special interest (historical, artistic, scientific and literary), separately or in collections;
Rare manuscripts and documentary monuments;
Archives, including photo, film, video archives;
Unique and rare musical instruments;
Postage stamps, other philatelic materials, separately or in collections;
Ancient coins, orders, medals, seals and other collectibles;
Rare collections and specimens of flora and fauna, items of interest to such branches of science as mineralogy, anatomy and paleontology;
Other movable items, including copies, that have historical, artistic, scientific or cultural significance, as well as those taken under state protection as historical and cultural monuments.
The variety of terms used is explained by the complexity that arises when using concepts generally accepted in relation to cultural values in relation to customs legislation. This is the very line beyond which a unique creation expresses the creativity of the people, their language, customs, religion, etc. becomes, from the point of view of the letter of the law, “goods transported across the customs border of the Russian Federation.”
It must be emphasized that values (cultural values), from the point of view of the international classification used in assessing national wealth according to the system of national accounts, are one of the components of non-financial production material assets. In this case, cultural values can act as objects of significant value that do not decrease over time, which themselves are not directly involved in material production, but at the same time can be stocks of value.
National wealth
Non-financial assets Financial assets
Non-financial assets (in the system of national accounts)
MaterialIntangible
1. Fixed assets 1. Geological exploration costs
Production2. Mat. negotiable assets 2. Originals lit. and artist production
3. Values 3. Computer software
1. Land 1. Licenses, patents, know-how
2. Subsoil wealth 2. Lease agreements
Non-production3.Non-cultivation
resources (forest, fisheries,
It should be noted that customs legislation does not imply the classification of cultural property as a separate category of goods from the point of view of customs clearance and, thus, from this side, cultural property becomes a commodity, like any movable property moved across the customs border of the Russian Federation.
The product nomenclature contains product group 97 - “Works of art, collectibles and antiques” and offers a classification of cultural property into six product positions:
9701100000 – Paintings, drawings and pastels;
9701900000 – Other;
9702000000 – Originals of engravings, prints and lithographs;
970300000 – Original sculptures and figurines from any materials;
9704000000 – Postage stamps or state duty stamps, postage marks, etc.;
9705000000 – Collections and collectibles in zoology, botany, mineralogy, anatomy, history, archaeology, paleontology, ethnography, or numismatics;
9706000000 – Antiques over 100 years old.
This classification involves assigning cultural property to a separate product group.
At the same time, the customs authorities of the Russian Federation are entrusted with the functions of suppressing illegal trafficking across the customs border of objects of artistic, historical and archaeological property of the peoples of Russia and foreign countries. In addition, control over the legal movement of cultural values (provided that they have a material and spatial form of embodiment) involves separating them into a separate category of goods.
This circumstance is due to the fact that in the traditional understanding, a commodity is a product of human labor created to make a profit through sale or exchange. Naturally, cultural values can act in this capacity, but the previously given definitions related to cultural values clearly contradict the economic essence of the product, as can be seen from the preamble part of the law “On the Export and Import of Cultural Property”.
In addition, conditionally falling under the definition of “goods” as “any movable property...moved across the customs border of the Russian Federation” (the Law “On Customs Tariffs”), cultural property does not fall under the scope of this law. Based on the disposition, the law “On Customs Tariffs” cannot be applied to the regulation of legal relations arising from violations or offenses in the field of control over the export and import of cultural property.
This law, being a legislative act of direct effect, does not establish procedural features and subjects of responsibility in the area of violations associated with non-compliance with the established procedure for the movement of cultural property across the customs border.
Thus, by correlating the object “goods” and the object “cultural value”, we can conclude that the Labor Code does not provide for the object of an offense - the procedure for registering cultural property moved across the customs border of the Russian Federation, which also confirms the need to separate cultural property into a separate category goods.
Based on the foregoing, it is necessary to determine the delimitation of the scope of application of administrative and criminal legislation in relation to those cases when the order of movement is violated, including the application of customs regimes, the procedure for customs clearance and customs control over the movement of cultural property across the customs border of the Russian Federation.
It is also necessary to emphasize the essential feature that lies in determining the customs value during customs clearance of cultural property and placing them under the temporary “import/export” regime. According to the Law “On Customs Tariffs”, the customs value is declared by the declarant to the customs authority of the Russian Federation. The procedure for determining the customs value of goods is based on the general principles of customs valuation accepted in international practice and applies to goods imported into the customs territory of the Russian Federation and is determined by the Government of the Russian Federation on the basis of the provisions of the law “On Customs Tariffs”. The customs value of exported goods is also established by the Government of the Russian Federation.
When determining customs value, the methods established by this Law are used.
It is significant that none of the six methods can be applied in the case where the goods are cultural property.
Naturally, the very concept of “cultural values” or “works of art” implies a careful and attentive attitude towards them both on the part of workers in the “cultural” sphere and on the part of customs authorities, who are accustomed mainly to dealing with “ordinary” goods , i.e. "a product of labor created for sale."
It must be said that customs clearance of cultural property occurs in accordance with the procedure established for these purposes, which is regulated by the Law on the Export and Import of Cultural Property, customs legislation and other relevant legislative acts of the Russian Federation.
The fiscal function of customs authorities when registering cultural property is reduced to a minimum, since customs legislation currently provides the opportunity for duty-free export of works of art that are not antiques or are not national property. At the same time, the presence of a value added tax on works of art significantly limits the possibility of importing cultural property into Russia. On the one hand, this prevents the import of so-called works into Russian territory. “pseudocultures,” on the other hand, lead to great difficulties in the case of the acquisition of true masterpieces by Russian museums and other organizations. However, the possibility of importing cultural property with VAT exemption exists and is used in some cases by Russian museums to purchase or accept works of art as gifts. The decision on exemption from VAT in such cases is made separately each time and is within the competence of the State Customs Committee of the Russian Federation.