Saturday, 29 September 2018

Permit-Regulated Artefact Hunting in Europe [UPDATED]


[note: Raimund Karl of Bangor suggests that Austria
 should be 'green', not red   but his convoluted arguments
 for an alternative and  specific legalistic interpretation
 of the relevant legislation have not yet convinced me
- see his extensive comments in the comments section
 below and decide for yourselves, the Father-Christmas-
buried-in-a-flower-border  stunt shows the sort of
'evidence' this professor considers clinching]
I am writing something today and just wanted a quick aide memoire about where intrusive intervention in the archaeological record and in particular its Collection-Driven Exploitation (with or without metal detectors) is regulated or restricted by permit systems, and where it is more or less like the laissez faire situation in England and Wales. I quickly knocked up a map (in part initially based on this list with corrections and additions), but realised that since there's apparently not anything like this on the internet, it might be worth posting here. So for what it's worth, here it is, a rough version, green marks areas with liberal legislation, allowing digging, metal detecting and other forms of artefact hunting without a permit, red is where you need a permit. The yellow countries are those where I have not yet worked out what the situation is, though I expect that when I do, they will be red too. It is a little more nuanced than shown here of course (for example a permit system in N Ireland [Update: and see Karl's comments below on the muddled situation of Austrian archaeology]), but this gives a rough idea how it looks.

It is interesting to see how all the 'CDE-liberal' countries are on the North Sea and Baltic Sea littorals. Or perhaps its a northern European phenomenon, or somehow related to Protestantism?. 

UPDATE 4th November 2018
I have been contacted by a couple of people about this map and have decided to update it. The situation as I read it originally was ambiguous in the Russian Federation, where it seems that while known sites were protected, archaeological sites on private land were not and I was unclear on the position over loose artefacts. I have been told that since 2013 federal law No 245 has been passed and this now means that all movable archaeological objects in the ground, on the ground and underwater have been declared by law as State property (regardless of their registration, origin and relation to the known archaeological sites). 'They are not covered by the civil-legal definition of treasure, and therefore must be unconditionally returned to the state bodies under threat of prosecution'. That's good news and allows me to change the colour of the big patch on the right of the map.

Another change is that for some reason I had Latvia as a liberal country in the same way, but somebody pointed me to a very interesting document which acts as a sort of Red Book for Latvian antiquities (interesting with regard to the 'Viking' [not really] objects that are still flooding eBay from this region) which clarifies that Latvia's colour also needs changing on my map.

Also I was a bit wary of marking Ukraine green on the first version of this map, Sam Hardy however points out (“Black archaeology” in Eastern Europe: Metal detecting, illicit trafficking of cultural objects and “legal nihilism” in Belarus, Poland, Russia and Ukraine- referring to the 2004 Ukrainian 'Law on Protection of Archaeological Heritage'Art. 8-10)

It turns out that Luxembourg has a permit system.

Albania's legislation is a bit unclear to me, but it seems art. 33 and 41-2 of this 2003 law (9048 for the cultural heritage) means artefact hunting is subject to a permit system too.

I am struggling a bit with the five Balkan states. Bosnia and Herzegovina has a permit system for excavations on archaeological sites, but I cannot determine whether this also replies for searching for archaeological material where there is no known site, probably though this is the case. Mention is made here (National report on the implementation of the 1970 convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property) however of the problem that reporting finds is not mandatory, so the situation remains unclear. The situation in Macedonia, Serbia, Kosovo, and Montenegro is unknown to me. I'd be grateful for more information to help me fill in the empty areas on this map.

11 comments:

Raimund Karl said...

Sadly, this map is incorrect where Austria is concerned. Austria has no permit system for artefact hunting. It has a permit system for archaeological excavations on scheduled monuments and in places where objective, publicly available evidence indicates that monuments will be found on the balance of probabilities (in legal terms: a preponderance of evidence speaking for rather than against the discovery of monuments during fieldwork). Monuments as defined by § 1 (1) Austrian Monuments Protection Law (Denkmalschutzgesetz) are 'portable or immovable objects of historic, artistic or cultural significance, whose preservation is in the public interest due to this significance', with public interest in their preservation existing according to § 1 (2) if they 'from a supra-regional or regional (local) perspective are cultural property of such nature that its loss would diminish the stock of Austrian cultural property overall in terms of its quality as well as sufficient multiplicity, diversity and distribution. It also is relevant to what extent the preservation of the monument allows for historicakl documentation.'.
The standard of evidence required to determine whether any object is a monument is that it must be beyond reasonable doubt that the object in question meets the criteria stated in § 1 (2). As a result, in all of Austria, there is only c. 1,050 archaeological monuments that currently seem to meet these criteria and thus are scheduled. Almost none of them is a portable antiquity (less than 5). According to a recent publication by the new president of the BDA (in office since 1/1/2019), a portable antiquity like a well-preserved Roman Bronze helmet might be a 'monument' under the law; though the past scheduling practive by the National Heritage Agency (which is required by law to schedule any object of such significance that it meets the criteria of § 1 (2) Monuments Protection Law once it comes to its attention) indicates that no Roman Helmet ever found in Austria (and there are some, even from stratified contexts) has ever been scheduled. Thus - based on past precedent - it has to be assumed that not even publicly known, attested finds of Roman helmets constitute sufficient evidence to justify an assumption that momuments wil be found on the site of their discovery.
That means that a permit for fieldwork 'with the purpose of discovering monuments' most likely is only required on the c. 1,050 scheduled archaeological sites in Austria. This is pretty much exactly the same situation as in the UK where legal requirements for fieldwork permits are concerned.
So I suggest you change that map again...

Paul Barford said...

Hi, thanks for that comment, I think in a lot of the countries shown (red or green) there are 'yes-but' nuances, especially when one begins a legalistic nit-picking dissection of infelicities of wording of legislation. Poland for example. I was more interested in the overall situation. You say the situation is 'like in the UK', but I suspect you'll not get a permit to carry out Collection-Driven exploitation of any scheduled site in the UK (and of course you are aware that the legal situation is in any case different in different parts of that UK anyway). Certainly British and European detecting forums and websites indicate that from their point of view, a permit system is in place in Austria, for example: https://md-hunter.com/list-of-countries-where-metal-detecting-is-allowedbanned/ and http://www.sisintsecurity.com/image1/The_Law_Regarding_Metal_Detecting.pdf. or http://www.minelabowners.com/europeanlaws.html and if it were as simple as you suggest, then Austrian detectorists would not be joining the ECMD, would they?

In any case, this is quite at odds with what you yourself write, for example in your "On the Highway to Hell: Thoughts on the Unintended Consequences for Portable Antiquities of § 11(1) Austrian Denkmalschutzgesetz". Or your archdenk text with Katharina Möller "An empirical examination of metal detecting" (where the 'restrictiveness' of the Austrian law in this regard is a *key element* of your argument against Hardy). So you can't troll it both ways.

For the moment, I'll leave the map as it is, as it seems to me that the Austrian situation is comparable to Poland.

Raimund Karl said...

Hi Paul,
well, it's your map and you can do with it what you want. Nonetheless, if you leave Austria red, you are misrepresenting the legal situation, and that in more than one way.

Firstly, as said in my original comment, the Austrian Monument Protection Law only includes a permit system for fieldwork on scheduled sites (and only hypothetically, possibly also some other sites from which there is a preponderance of evidence that monuments in whose preservation there is a public interest according to § 1 (2) of the law exist). There is no 'permit system for artefact hunting' in the law, whatever you, metal detectorists, or indeed the National Heritage Agency believe(d).
Now, while in my 2011 and other papers, I summarised the National Heritage Agency's opinion on how the law is to be interpreted (which it has applied since c. 1980), this is nonetheless not what the law actually says. I have explained this in some detail in my most recent paper in HEN (the third part of the 'Heritage Hell' trilogy, 'Judgement Day in Heritage Hell'), published in 2018. There also is a very recent (though German), even more up to date explanation of how § 11 (1) DMSG (the 'fieldwork permit'-provision) is to be interpreted in the light of 3 recent judgments of the Austrian courts, 1 by the Supreme Administrative Court (VwGH 23.2.2017, Ro 2016/09/0008) and 2 by the Federal Court of Administrative Appeals (BVwG 11.9.2017, W183 2168814-1/2E; 19.9.2018, W195 2197506-1/11E), at https://archdenk.blogspot.com/2018/12/ein-weiteres-erkenntnis-des-bvwg-zur.html. These 3 judgements (which constitute the Austrian equivalent of a legal precedent and thus are binding res iudicata) make it very clear that 'artefact hunting' is mostly freely allowed by law.
Please note: this is not 'a legalistic nit-picking dissection of infelicities of wording of legislation'. It is - and at that, very clearly, what the Austrian legislator, that is, parliament, wanted the law to say. That is very plainly evident from the published explanations to drafts for the last two major revisions of the Monuments Protection Law. It is also consistent with the recurring Supreme Administrative and Supreme Constitutional Court judicature; and it is indeed the only possible interpretation of the law which is consistent with Austrian Constitutional Law.
It isn't by accident of infelicitous wording that the Austrian Monuments Protection Law says what it does: it is the explicit 'will of the Austrian people' that only monuments in the sense of § 1 (1), whose protection is in the public interest according to § 1 (2), are protected. Austria is a federal republic based on the rule of law according to its Constitution. Thus, the law - as the expression of the will of the legislator and thus, by proxy, 'the Austrian people' - is the only thing that matters to determine as to what is freely allowed and what is prohibited.
That law has been massively misinterpreted and misapplied by the National Heritage Agency for the last c. 40 years; despite the law actually being quite clear. One can only assume that this happened by reason of sheer incompetence of the public officials responsible for upholding this law, because the alternative (intentional misapplication of the law) would be too shocking to even contemplate.
So, your map is wrong in showing Austria in red, because, apart from some nuances about preponderance of evidence for monuments existing on non-scheduled sites, Austrian Law is restricting 'artefact hunting' pretty much exactly like English and Welsh law. That administrative malpractice, at least until recently, has led to Austria appearing to be 'restrictive' in regulating 'artefact hunting' does not change this.

Raimund Karl said...

But even if you wish to disregard these facts, secondly, your map is also wrong because 'artefact hunting' is definitely freely allowed in Austrian law.
This is very clear from the provisions regarding the legal right of Austrian citizens to freely appropriate ownerless property (even including real estate, not just portable objects) in §§ 380-403 Austrian Common Law (Allgemeines Bürgerliches Gesetzbuch [ABGB]). Especially relevant here are the provisions on finds of lost, forgotten and hidden property of §§ 388-397 and of 'treasure' of §§ 398-401 ABGB. While the former three categories of portable finds, if ownerless, can be freely appropriated by their finder (i.e. 'finders keepers' applies), 'treasure' according to § 399 is split equally between finder and landowner. That is, unless a chance find of 'treasure' is made by 'hired workers', in which case - if they were hired to do any other work than 'finding treasure' - they get one third of the treasure, while they have to make do with their ordinary salary if 'hired to find treasure' according to § 401 ABGB. As a result, 'treasure hunter' is even a legal profession in Austria, with some individuals even holding an official trade licence as 'treasure finders'.
This fact is not changed by the 'archaeological fieldwork permit'-provision of § 11 (1) Monuments Protection Law. Rather, as again very clear from the law, this 'permit' provision only applies to 'Research by changing the surface of the earth or ground under water (excavations) and other research in situ with the purpose of discovering and examining portable and immovable monuments beneath the surface of the ground or water requires a permit by the Bundesdenkmalamt... (research excavation)'. As such, this 'permit requirement' only and exclusively applies to archaeological research in situ, not to 'artefact hunting' - unless you want to define 'artefact hunting' as 'archaeological research', which I seriously doubt you do (and I most certainly don't). As shown by my translation of the German wording of the law, the term 'research' appears thrice in the sentence defining the applicability of this provision, so there can be no doubt even from that alone. But if one still had any doubts, again, the explanations on the government drafts of the last two major revisions of the law (from 1990 and 1999) clearly state that the intention of this provision is to 'introduce the regulations necessary for professional archaeological fieldwork'. And if after that, any doubt would remain, the second sentence of § 11 (1) states that 'Such a permit can only be issued to individuals who have completed an academic degree in a relevant subject', with the explanations to the government draft for the 1999 revision of the law specifying 'relevant' as 'a degree in archaeology or pre- and protohistory, provided practical fieldwork training is a compulsory element of the degree programme'.
Thus, 'artefact hunting' does not fall under the 'permit provision' of § 11 (1) Monuments Protection Law. At the most, using a metal detector for (professional) 'archaeological research' does, and at that (see above), only on scheduled monuments and where there is a preponderance of evidence that (still unscheduled) monuments will be discovered.

Raimund Karl said...

In fact, individuals who have not completed a 'relevant' degree cannot be granted a § 11 (1) permit in Austria for 'artefact hunting', since such a permit can never be legally issued to them by legal definition. Thus, under the law, in Austria, there is only two possibilities where 'artefact hunting' is concerned:
1) Where the provisions of the Monuments Protection Law apply (that is, on scheduled monuments and land where there is a preponderance of evidence that as yet unscheduled, but schedulable, monuments), 'artefact hunting' is completely prohibited. The only kind of artefact extraction on such land that can be permitted according to § 11 (1) by the National Heritage Agency, and that only to archaeology graduates, is professional archaeological fieldwork. Thus, such a permit cannot be granted for ‘artefact hunting’ in the sense you use that term.
2) Where the provisions of the Monuments Protection Law do not apply (that is all land other than the one listed under 1), that is, in excess of 99% of all Austrian land), provided the landowner consents to it, 'artefact hunting' is freely allowed (and I intentionally do not use 'permitted' here, because that would imply that some kind of permit would be required after all, while it is not: Austrian law operates on the principle that any activity that is not explicitly prohibited by law is freely allowed). Thus, any such legal ‘artefact hunting’ is also not regulated by a permit system; and in fact, the National Heritage Agency MUST NOT issue any permits for it, because this activity is freely allowed.
Either way, for your map, this means that Austria should – if you want to represent the actual situation correctly, rather than show in bright red the legal malpractice by the National Heritage Agency – be coloured in green, since ‘artefact hunting’ is not ‘permit-regulated’ in this country.

All of which, incidentally, is why for the better part of the last decade, I have been arguing that the law is problematic from an archaeological perspective and needs to urgently be changed; and at that, changed in ways which are both possible within the limitations set for archaeological heritage protection legislation by constitutional (and other) law AND better protect the archaeology from unrecorded loss. If you want, we can discuss seriously how such an aim can actually be achieved within the Austrian (and wider international) legal framework, because I think I have found a solution; even if it is a solution that you may not entirely like.
But it doesn’t matter in the end of whether you (or indeed I) like it, but only whether it can (both legally and practically) improve the current train-wreck that we have in Austrian law. So if you can come up with a better solution than I, I’m happy to propose that rather than the one I already have proposed, because I want archaeological heritage protection in Austria (and many other countries) to improve as much as possible. But any such solution must be legally sustainable and practically effective, not based on pipe dreams which sound well from an archaeological perspective, but cannot actually work within the legal and societal framework that exists in a given country (or internationally). Because pipe dream solutions is what heritage managers have been chasing, at least in Austria, for the last 4 decades (at least), to no avail and archaeology’s great detriment. And that must change.

Paul Barford said...

Yes, it is my map, and the discussion of one piddling country in the middle of it is taking up a lot of space here. To cut through the verbiage, you seem to be saying there is a permit system in Austria intended to regulate intervention in the archaeological record but in your opinion it does not apply to Collection-driven exploitation of the archaeological record because 'metal detectorists' cant get one as they do not have the appropriate qualifications. I think you are missing the point of what I was interested in. But anyway, basically that is what I am after, that Tom Dick and Hamid cannot take a spade to a Roman villa to add Roman coins, buckles and brooches to their personal artefact collection or fling on eBay. So in that case, it is not the same as in the UK, and more like that in Poland.

Raimund Karl said...

Well, Paul, the point of all the verbiage is to explain to you why it isn't like in Poland and that 'artefact hunters' in Austria do not need a permit (nor can get one) for digging holes into a Roman villa. Rather, what is the case is that either -if the Roman villa in question is scheduled - they cannot get a permit, but rather are prohibited from digging (or even only collecting surface finds) completely by law, or - if the Roman villa in question is not scheduled - they can dig holes into it to their heart's content, because digging holes into unscheduled Roman villas is freely allowed under Austrian law, no permit required.
And it is not my opinion, but it is the letter of the law, as interpreted in precedent-setting cases by the Austrian Federal Appelate and Supreme Courts. And given that the judgement of (at least) the Supreme Court is fully legally binding (unless it overturns its own previous judicature or the law is changed by parliament), this is what the situation is, whether you like it, believe it, or not.

So, do what you will, but be aware that if you show Austria in red, you are - now knowingly - misrepresenting the situation in this country. I don't mind either way, since it's your blog and your map, but I thought I would let you know, just in the - admittedly extremely unlikely - case that you are actually interested in presenting a truthful, rather than a made-up and incorrect, picture.

Paul Barford said...

"You are - now knowingly - misrepresenting the situation in this country"

Bollocks. You are talking chalk, and I am interested in the cheese pattern. I see no reason to make Austria the 'exception' that you want, Bangorian special pleading legalistic nit-picking verbaiage or not.

Tell you what, you go out with your metal detector wherever you want in Austria not bothering about a permit, make a little private collection of Roman brooches, call it "participating in archaeology" and blog about it, we'll see how that goes down. I'll give your collection publicity. Show us how its done - can you take Peter Tompa with you? He's dying to have a go and loves also special pleading arguments.

Raimund Karl said...

Guess what, Paul: I have no metal detector, nor have I ever used one, and if I need one on one of my digs, I get in a skilled metal detectorist to do the detecting for me. Also, the only two things I collect are academic books anbd conference badges, so no roman brooches here.

And guess what also, Paul: I've already done almost what you suggest about 'going out in Austria' and digging for unscheduled artefacts and features 'without a permit', then reported myself with a full written confession about and full photographic documentation of my 'illicit' activities to both the Austrian National Heritage Agency and the Prosecuting Authorities; and written up and published the whole funny story. Despite reporting my fully recorded unpermitted 'hoiking out of the ground' of an artefact and utterly unique archaeological feature, the case was closed by the prosecuting authority because 'no offence had been committed' by my actions. That case didn't even make it to the Court of Appeals, because the National Heritage Agency didn't appeal (despite claiming not to have known of the case, which would have given it a good cause for appeal if that claim had been true - which, of course, it was not, because of me having reported myself to them directly and having a response to the relevant email by the Head of Archaeology at the Agency and them having been asked twice by the prosecuting authorities [also on file] to comment on the case, which they are obliged by § 37 (8) Monuments Protection Law to do).
Of course, I had the feature created by my wife (in my absence, so that I wouldn't know what it was) specifically for that little experiment, and had bought the artefact she deposited within it - a little Santa Claus bust - in Britain for the purpose of conducting that little experiment; so the only 'harm' done was to a very recent archaeological 'monument' (under the definition of § 1 (1-2) Monuments Protection Law). But that's irrelevant, because absolute age in Austrian law is no consideration as to whether something is a 'monument' or not, all which matters is its 'significance', with being 'unique' making it sop exceptionally significant that it would have had to be scheduled by the Heritage Agency had it known of its existence before I 'destroyed' that particular little part of 'contemporary archaeology'.
The case was created as it was specifically to test whether the law applies to 'hoiking' unscheduled 'monuments' out of the ground, and proved that it didn't, even if only at the lowest level of jurisdiction (which thus is rather worthless, since it doesn't establish precedent). You can read up on it (sadly again in German only, but an English version is on its way) here: You can read it here: https://www.academia.edu/8074411/Ein_mikrolithischer_Monumentalbau_Zur_legalen_Ein-_und_illegalen_Ausgrabung_eines_Weihnachtsmanns._NG%C3%96_Jahresschrift_2014_8-13.

At any rate, Paul, what you don't get is that all this is not a matter of simple opinion, where your pipe dreams are as valid as well-founded, evidence-based arguments, but a matter of legal opinion. And where legal opinion is concerned, there is an authority which can and indeed, if there is any dispute, must decide which legal opinion is correct, and what legal opinion is false; and that is the Courts. And the Austrian Courts have decided, and have spoken very clearly in their decisions; whether you like it or not: 'artefact hunting' in Austria is not regulated by a permit system.

Make of it what you will; but if you continue to misrepresent established legal facts - that is, res iudicata, matters which have been decided conclusively by the courts with final jurisdiction about these matters - then stop pretending that you are at all interested in reasoned debate about real, rather than just your imaginary 'ideal', heritage protection.

Paul Barford said...

>The case was created as it was specifically to test whether the law applies to 'hoiking' unscheduled 'monuments'<

And I am sure the Austrian archaeological heritage is all the safer from looting because of it. Now invite Peter Tompa, you'd obviously have a lot to talk about. he arranges stunts to test the law too.

I do not know why you keep referring to my "pipe dreams", that's just insulting.

Paul Barford said...

"Ein mikrolithischer Monumentalbau: Zur legalen Ein- und illegalen (?) Ausgrabung eines Weihnachtsmanns"

WTF? You expect us to treat this seriously? This clowning around is your legal case? You have a lot more in common with Peter Tompa than I thought !

Right, this discussion is now ended.

 
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