Issue: № 2, 2023
Doi: https://doi.org/10.37634/efp.2023.2.11
Today, the archaeological heritage is an integral element of the objective side of the composition of the crime provided for in Art. 298 of the Criminal Code of Ukraine. At the same time, the effectiveness of the mentioned article, in our opinion, raises certain doubts. First of all, this is due to the fact that encroachments, the subject of which is the archaeological heritage, have a high level of latency. In addition, when applying Part 1 of Art. 298 of the Criminal Code of Ukraine, in the vast majority of cases, there is a problem of proving that illegal archaeological explorations, excavations, other earthworks or underwater works were carried out precisely on the site of archaeological heritage. This paper is devoted to the study of archaeological heritage as a subject of criminal encroachment and clarification of the terminological apparatus used in defining the specified element. During the research, all existing archaeological heritage sites in Ukraine were divided into three groups: 1) known archaeological heritage sites; 2) intended objects of archaeological heritage; 3) unknown objects of archaeological heritage. The given gradation gives rise to certain peculiarities regarding the status of archaeological heritage objects and the adaptation of measures aimed at their protection. Yes, criminal protection under Art. 298 of the Criminal Code of Ukraine applies only to objects of archaeological heritage of the first group. Legal protection is provided to known objects of archaeological heritage that have just been discovered or those that exist as monuments of national or local importance, that is, objects that have been granted the legal status of «object of archaeological heritage» by the state. In any other case, it is impossible to prosecute the guilty persons for the illegal conduct of archaeological explorations, excavations, other earthworks or underwater works on the object of archaeological heritage, which belongs to the second or third group. They do not have the corresponding legal status of «site of archaeological heritage», despite the fact that they are such in essence. It became necessary to introduce changes to the current legislation for the purpose of preventive protection not only of objects of archaeological heritage with a clearly defined legal status, but also of those that do not have it.
Keywords : archaeological heritage, cultural heritage, criminal encroachment, subject of the crime, search work, «black archeology»
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