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Issues of 2008

To fill a lacuna

In ╚Antique.Info╩ No 57 we tried to attract your attention to a disputable and conflict situation connected with some events in the salon of antique arms ╚Cuirassier╩. Elena Shelkovnikova, a professional lawyer, doctor of juridical sciences and professor, is talking on the imperfection of Russian laws that allow such situations to happen.

Recently museum workers, owners of antique salons, collectors of antique arms and admirers of antiquity have started asking themselves more and more often: ╚What laws and regulations legalize the right to collect, exhibit, exchange, buy, sell and do other things with antique fire-arms and cold steel if there is no such a term as ╚antique arms╩ in the Federal Law ╚On Arms╩? The question seems to have no answer at first sight.

At that many specialists on arms know that during the last two years law enforcement agencies and prosecution authorities of Saint Petersburg, Moscow and other cities and town initiated many criminal cases on the basis of sub╛sections 1 and 4 of the article 222 of the Criminal Code of the Russian Federation regarding owners of antique fire╛arms and cold steel. At that not all the cases were closed for lack of corpus delicti.

Lets▓ try to solve the problem in the framework of the actual Russian legislation. It▓s true that there is no definition for the term ╚antique arms╩ there. Consequently, it▓s a law lacuna. And now let▓s recall what the nuts and bolts of jurisprudence read: they read that any law lacuna can be filled up with the use of the similar rule of law by analogy if the opposite is not created in the law itself. It is true that the legal analogy of the law can not be used, for example, in constitutional, criminal (Criminal Code of the Russian Federation, article 1, sub-section 1) and administrative (Administrative Offences Code of the Russian Federation, article 2.1) legislations. But we are talking about the Federal law ╚On Arms╩ and legal analogy can be applied in this case. So let▓s ascertain what regulations of international law and the actual Russian legislation could be applied by legal analogy to determine the status of antique weapons.

On November 2, 2001 the State Duma of the Federal Assembly of the Russian Federation passed the bill ╚On Alterations and Insertions to the Federal Law on Arms╩ in its first reading. It was done to create a system of legal regulation of transactions on antique (ancient) weapons as component part of arms of cultural value.

Seven years passed. Nowadays they specify and adjust it to submit for consideration in the second reading in the framework of working group attached to the Security Committee of the State Duma of the Russian Federation. The Department of Mass Communications, Culture and Education of the Government of the Russian Federation, Department of Licensing Work of Ministry of Internal Affairs and Federal Service of Surveillance in the sphere of Mass Media, Communications and Protection of Cultural Heritage (Rossvyaz▓okhrancultura) do a lot to prepare and adjust the draft.

But still, what▓s the legal status of antique weapons just now? After all antique weapons materially exist and are kept in expositions and funds of state and private museums and in private collections; they are exhibited in our country and abroad by their owners.

Now the regulatory base of antique weapons, its copies and replicas transaction consists of the following regulations:
≈ Federal law ╚On Arms╩;
≈ Federal law ╚On Museum Fund of the Russian Federation and Museums in the Russian Federation╩;
≈ Federal law ╚On Export and Import of Cultural Values╩ dated April 15, 1993;
≈ Federal law ╚On Objects of Cultural Heritage (historical and cultural monuments) of the Peoples of the Russian Federation╩, 2002;
≈ Federal law ╚On Licensing of Some Kinds of Activity╩ (as amended on March 21, 2005);

At the present time commercial activities with antique weapons along with purchase and sales transactions of antique weapons, their replicas and copies are realized without acquisition permits by law enforcement agencies; art and history expert opinions on their admission as cultural values are present but not registered in the Federal Service of surveillance in the sphere of Mass Media, communications and protection of cultural heritage.

As for museums they must as usual get licences on collecting and exhibiting of weapons and cartridges in Ministry of the Interior every five years. Just imagine the following situation ≈ visitors want to enter Knights Hall of the State Hermitage and it is closed because the licences are expired┘

By the way, there are no cartridges in the funds of Arsenal department of the Hermitage and the period of validity of the licence given by Ministry of the Interior runs low. The State Pushkin museum keeps 62 units of antique weapons and only one unit is a percussion pistol; the others are flintlock ones. And the list could be continued.

At the present time admission of weapons, majority of fire╛arms and cartridges for them as antiques is realized only by expert opinion for their admission as cultural values. The decision is passed in the procedure determined by article 2 of the purview of the Governmental regulation No 814 dated 1999 ╚On Measures on Regulation of Transaction of Civil and Duty Weapons and Cartridges for them in the Territory of the Russian Federation╩. All the weapons that form part of museums▓ collections and are included into Museum fund of the Russian Federation are museum objects and weapons of cultural value and do not fall under the operation of the Federal law ╚On Arms╩ and above╛mentioned Governmental regulation (article 8 of the Federal law ╚On Museum Fund of the Russian Federation and Museums in the Russian Federation╩ dated 1996 and clauses No 7 and 21 of the law of the Russian Federation ╚On Export and Import of Cultural Values╩ dated 1993, as amended on November 2, 2004). At that museum objects including weapons come under the operation of the article 243 of the Criminal Code of the Russian Federation ╚Destruction or Damage of Monuments of History and Culture╩ in case of their damage or destruction. Besides, there are regulations of international law that determine legal status of antiques. According to the article 4 of UNESCO Convention ╚On the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property╩ (Paris, November 17, 1970) and the regulation of the Government of the Russian Federation No 830 dated on November 30, 2001 г. ╧ 830 that determined commodity nomenclature (code 9706) etc. antiques are ancient objects more than 100 years old. Considering the fact that the actual Convention was ratified by the USSR in 1988, it is subject to absolute execution in the territory of the Russian Federation as international legal act of direct action. Reasoning from the meaning of parts 3 and 4 of the article 15 of the Constitution of the Russian Federation, part 3 of the article 5 of the Federal law ╚On International Treaties of the Russian Federation╩ dated 1995, Decree of the Plenum of the Supreme Court dated March 12, 2002. No 5 ╚On Court Practice on Cases on Illegal Transaction of Weapons╩ (article 10), Decree of the Plenum of the Supreme Court dated October 10, 2003. No 5 ╚On Applying of Universally Recognized Principles and International Regulations and International Treaties in the Territory of the Russian Federation by Courts of General Jurisdiction╩, international treaties have direct and immediate effect in the law system of the Russian Federation providing their carrying into effect and after their official publishing in Corpus of Legislative Acts of the Russian Federation or in ╚Bulletin of International Treaties╩.

Correspondingly at the present time the admission of weapons, firearms and cartridges for them as antiques is realized only by expert opinion on their admission as cultural values carried out in the procedure determined by article 2 of the purview of the Governmental regulation No 814 dated 1999 ╚On Measures on Regulation of Transaction of Civil and Duty Weapons and Cartridges for them in the Territory of the Russian Federation╩. At that all weapons making part of museum collections and included in Museum fund of the Russian Federation are museum objects and weapons of cultural value and in this connection do not fall under the operation of the Federal law ╚On Arms╩.

We would like to mention that all experts▓ decisions on admission of antique weapons (and their copies and replicas) as cultural values should have obligatory state registration by Federal Service of surveillance in the sphere of Mass Media, communications and protection of cultural heritage (Rossvyaz▓okhrancultura). At that legal opinions should contain single answers:

1. Do the weapons have cultural value;
2. Do they belong to the category of antique weapons.

If the opinion of historical cultural and art commission of experts is negative, law enforcement agencies will have reasons to carry out criminalistics expert examination and rank the declared weapons among combat, duty or civil weapon on the basis of regulations of the Federal law ╚On Arms╩.

And another thing. At the present moment a book where all the owners of antique weapons are registered is kept in the Department of Control on Export and Import of Cultural Values of the Federal Service of Surveillance in the sphere of Mass Media, Communications and Protection of Cultural Heritage.

Nobody argues that one should keep on the right side of the law. Antique (ancient) weapons have long been part of civil, state and private transactions: they are exhibited, collected, bought, sold etc. As for the Federal law ╚On Arms╩ dated 1999 that is currently in force and does not say anything about legal status of weapons that have cultural values, it has obviously become antiquated. Nevertheless we are hopefully looking forward remembering the statement of Ancient Rome lawyers: ╚Lex prospict, non respict╩ ≈ ╚law should look ahead and not behind╩.