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Issues of 2008
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Legal lawlessness
Antiquarian weapon was always a stumbling block in the attitudes of collectors and law¬enforcement agencies. Often the withdrawals of collections concluded with the loss of unique objects, in many instances criminal cases in the attitude of collectors ceased, sometimes dispute was involved for long years… Recently, it would seem, the market for antiquarian weapon completely was formed, many specialized stores were opened, was decided a question about the free entry of similar objects to the territory of the country, it began to actively contribute to the making more active of market. The sensational criminal cases in the attitude of collectors have long ago disappeared in to summer. — Vadim, please tell us what has happened? — Events were turned havoc as follows. On June 25, 2007 on the basis the decision about conducting of checking by the Department of maintenance of public order of the Internal Affairs Ministry of Russia (DMPO) was realized checking the activity of the salon of antiquarian weapon «Kirasir». The workers of the police carried out verifying purchase, after which the activity of salon was stopped on the basis article 11 of law «about the police». Commercial activity for this reason was ended. Disturbances it was not discovered, the colleagues of the police entire day were situated in the accomodation of salon and studied documents. Nevertheless, on July 27, 2007 without the carrying out of the justified solution the checking organs produced the sealing of the accomodation of the store of antiquarian weapon «Kirasir». Checking was continued only on July 31, that check withdrew 21 unit of antiquarian weapon. In this case the withdrawal was completed in the night time, people were unjustifiably delayed at the work sites. Within entire period of conducting checking in the colleagues of salon it was not demanded not one document. The second decision about conducting of checking was carried out by the deputy chief of DMPO on August 1, 2007. The first demand about the assignment of documents entered also on August 1. In the evening militiamen again sealed up the accomodation of store, and until August 10 we did not have any information. As it proved to be, the material of checking was transmitted into the inquiry. Twice attorney made decision about the failure in the dacha of agreement upon the criminal complaint; however, according to the indication, obtained from the procuratorship of Moscow region, criminal case was excited on part 1 of article 222 of the Criminal Code of the Russian Federation on the fact of detection in the salon «Kirasir» of the objects, similar to the weapon. The first, what made colleagues of the police — this was conducted ballistic examination. Certainly, the revolvers of the 19th Century were acknowledged suitable for the production of shot. — It turns out that if the confiscated items (ammo, for instance) are in operational state, can they be considered a weapon? — The question whether such pieces are a weapon or antique pieces never has been never removed from the agenda. If we look to all forms of the objects, similar to the weapon, then be tangled simply. Indeed from a distance each of them seems intended for destruction of target. But in actuality their part is children’s toys, part — by air guns, part — strictly by antiquariate, and part — it is actual by weapon. When the colleagues of law-enforcement agencies, yes even simply citizens see something more similar to the weapon, the idea appears in them, that the revolution of such objects is regulated precisely by law «about the weapon». Here here that begins the most interesting. For example, during the detection of the Kalashnikov automatic rifle or pistol of Makarov of questions it does not appear, since the given objects are accepted for the armament, and they are, correspondingly, combat manual small arms. Their revolution is regulated precisely by law «about the weapons». But here if the discovered pistol proves to be, for example, contemporary foreign model, then law «about the weapon» to it not least does not refer. This pistol is neither combat nor official nor civil weapon. The revolution of such objects is regulated by the not above¬mentioned law, but by completely different normative reports. In this consists the complexity. It is in such cases necessary to establish not simply the presence of this object, which has the combat characteristics of weapon, in the hands of man, in his office, to apartment, store, but also to indicate, what of the rules have been violated. Completely different situation occurred with the weapon by antiquarian. Complexity in the fact that we do not have juridical determination «antiquarian weapon». According to the requirements of the international agreements of Russia and domestic legislation it is possible to make the conclusion that antiquarian are the ancient objects the age of more than 100 years. Thus, any object, whose age exceeded 100 years, simply automatically passes from the category «weapon», also, into the category «antiques». Since in accordance with article 15 of the constitution of the Russian Federation the international agreements have an advantage over the domestic legislation, the Russian Federation simply cannot use in such cases the standard of the domestic legislation. — Please, give mor deatiled information on the subject. — The Federal law from 13.12.1996 «about the weapon» regulates the juridical relationships, which appear exclusively with the revolution of civil, official, and also combat manual rifle and silent weapon in the territory of the Russian Federation, and absolutely do not apply to the weapon, created more than 100 years ago (i.e. according to the international agreements of Russia being been antiqueÙ). Norma, that establishes requirements on licensing and obtaining of permissions on the weapon, which has cultural value, in this law is absent. Among the types of the weapon, forbidden to the revolution in the territory of the Russian Federation, the weapon by the age of more than 100 years also is absent. For the execution of the law pointed out above was accepted the decision of government RF from 21.07.1998 of No 814 «about the measures for the regulation of the revolution of civil and official weapon and ammunition by the territory of the Russian Federation». This decision affirmed «the rules of the revolution of civil and official weapon and ammunition in the territory of the Russian Federation», where it is directly indicated that «the present rules do not apply to the revolution of the weapon, which has cultural value». It is thus completely confirmed that the weapon, which has cultural value, is another category, different from the civil and official weapon; the order of the licensing of the weapon, acknowledged as cultural value, is not provided. This point of view is directly confirmed by order Internal Affairs Ministry of the Russian Federation from 12.04.1999 of No 288 «about the measures for the realization of the decision of the government of the Russian Federation dated July 21, 1998 No 814». The instruction, affirmed by order, regulates the questions, connected with the inspection of the revolution of civil and official weapon, major portions of firearms and cartridges to it. Since for the ancient weapon, which is been antiquariate, no licenses and permissions it is provided, this order has to this category of no relation. This point of view is also completely confirmed by the decision of No of 5 plenums of the Supreme Court RF from 12.03.2002 «about the judicial practice in the matters about the embezzlement, the extortion and the illegal circulation of weapon, ammunition, explosives and explosive devices». Thus, in the decision it is said, the law of the Russian Federation «about the weapon» «regulates only the juridical relationships, which appear with the revolution of civil, official, and also combat manual rifle and silent weapon». At the same time criminal law provides for responsibility for illegal actions both with the types of weapon indicated and with other types of combat firearms, which is found in arsenal in the armed forces of the Russian Federation, other troops, military groups and the federal organs of the executive power, in which federal law provided military service, and on which the action of federal law «about the weapon» is not extended. Further in the decision it is discussed the fact that «with the appearance of difficulties in resolution of a question about the reference of the concrete models of weapon, cartridges and ammunition to one or other form or another it is necessary to assign examination for determining the tactical-technical characteristics of data of models. If the difficulties indicated are caused not by technical reasons, but the differentiations of the types of weapon are the consequence of contradictions between the legislative acts of the Russian Federation and the standards of international law, characteristic criteria, then in accordance with the part of fourth article 15 of constitutions of the Russian Federation it follows to be guided by the standards of international law». The Russian Federation is a participant in the international convention about the harmonized system of description and coding of goods (Brussels, 14.06.1983), of being been the basic document in the sphere foreign trade, since the commodity nomenclatures of the external economic activity of the participating countries of convention are based precisely on the harmonized system. The existing international systems of standardization (as the convention indicated, thus, for instance, and the international classifier of basic products) do not allow the dual interpretation of various terms; this is why weapon and antiquariate are absolutely different commodity groups. This found its reflection both in the commodity nomenclature of the external economic activity of the CIS and in the commodity nomenclature of the external economic activity of Russia (national nomenclature of customs tariffs, accepted in accordance with the convention and that affirmed by the decision of the government of the Russian Federation of No 830 from 30.11.2001). According to the rules, the group of goods («weapon») are not included the objects for the collecting and antiques, that relate to group of goods No 97. The point of 5 articles 40 customs of the codes of the Russian Federation, accepted by 28.05.2003, established that «the resolutions of customs organs about the classification of goods are required». However, as far as the classification of directly ancient weapon is concerned, the preliminary classification solution by such objects was accepted still in 1997; according to this decision «the antiquarian models of the weapons, whose age exceeds 100 years, are classified in CIS in accordance with the note of group 93». Therefore if customs organs of the Russian Federation recognized the imported models of ancient weapon as antiques by the age of more than 100 years and by the objects of collectivization on the history (group of goods No 97), then such classification completely excludes these models from the category of weapon (groups of goods No 93). The solutions of customs service of the Russian Federation are required for the performance by all organs. Furthermore, any object, which received concrete designation and, correspondingly, the commodity code in the process of classification by customs organs, cannot already after the completion of the customs formulation suddenly, at will of any face change its commodity code diametrically oppositely and pass from the discharge, let us say antiques into the category of alcoholic beverages, transportation means or weapon. The position of federal customs service of the Russian Federation in the relation of order of the import of the models of the ancient weapon pointed out above, which has cultural value, is additionally confirmed by the letter of Russia No 01-06/4853 from 18.02.2005, signed by the deputy chief colonel general of customs service Y.F. Azarov, which says: «Federal law «about the weapon» cannot be related to the report, which regulates the order of the import of the weapon, which is been cultural value, since the order of the revolution of exceptionally civil, combat and official weapon is determined. By civil is understood the weapon, intended for the use for purposes of self-defense, for the occupations by sport and hunting. The objects, which are been cultural value, are used for other purposes, in connection with which cannot be related to this form weapons… With resolution of a question about the reference of those declared by physical face of goods to the cultural values the officials of customs organs must be guided by the enumeration, established by article 7 of laws of the Russian Federation «about removal and import of cultural values… while when in point the passage of the expert of Ministry of Culture of Russia is present, by his conclusion». — What does the Ministry of Internal Affairs Culture thinks about it? — The position the Ministry of Internal Affairs of Russia also directly attests to the fact that the requirements of license — permissive nature are not applied to the regulation of the revolution of the ancient weapon, which has cultural value. All expert conclusions, in our opinion, must have unique solutions, does acknowledge the checked by expert weapon first, as the cultural value it is, in the second place, considered it antiquarian…». Besides this, widely known in the antiquarian circles document, there is another number of letters Ministry of Internal Affairs of Russia, which confirm the legality of the revolution of the antiquarian weapon, whose age exceeds 100 years. Thus, management Ministry of Internal Affairs of Russia completely supports the legal position of the free revolution of antiquarian weapon and its reference to the category of antiques, and it declares about the absence of requirements for the presence of any licenses and permissions for the weapon, which has cultural value. — But if everything is so simple, what how it has happened? — I think that those problems, which are quite simple and clear for professionals, are hard to understand for people who encountered them for the first time. Furthermore, it is not possible to deny the fact that the questions of the revolution of ancient weapon not each day arise in the practice of the work of law-enforcement agencies. Large complexity cause questions of international law. Yes even it is no secret that some staff members of law-enforcement agencies from the desire to show their competence and information in legal questions are ready to go with the sufficiently questionable solutions, which then it is necessary to cancel. When the article was prepared for print, we have learned that court decision established the fact of incompleteness the presented by police for making of a decision about the criminal complaint of the materials, in which there is no information about the state registration of the imported cultural values. Besides the court decided that the officials went beyond their authority when they sealed and closed the antique store «Kirasir». News agency «Russian Antique»
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