Illegal Detectorism and Archaeological Heritage: Criminal and Administrative Punitive Systems in Spain. (original) (raw)
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Fighting against the archaeological looting and the illicit trade of antiquities in Spain
During the seventies, archaeological looting, of both land and underwater sites, not only was widespread in Spain, but also went unpunished. This situation stemmed from a lack of effective administrative and criminal legislation, human resources to combat the plague, and educational policies warning of how harmful such practices were, in spite of damning reports in the media and the social alarm raised in certain professional and political fields. The new political and social phase that began with the Constitution of 1978 has enabled the country to overcome this situation in three ways: first, by passing new, more appropriate administrative and criminal laws to help combat looting and illicit trade; second, through the creation of new regional governments (the autonomous communities) able to enforce these laws, and which have hired archaeologists specializing in cultural heritage management. The fight against the criminal aspect of looting and the illicit trade of antiquities has also been intensified by the creation of police and prosecuting bodies dedicated to the area of cultural heritage, among others. Last, educational policies have been put in place to help increase social awareness of the importance of our cultural heritage and the global loss its destruction represents. In this article we will present the first two points that have improved the initial situation as regards archaeological looting and the illicit trade of looted goods.
AP: online Journal in Public Archaeology, 2013
The use of metal detectors is an important issue in the management and protection of archaeological heritage. However, metal detectors have been generally tagged as a tool for looting more than a tool for research or protection. Their use has evolved in a way that is now considered a problem in many countries, and each country takes a different path to tackle it. From prohibition to indulgence, there is no clear idea of what is the best way to deal with this problem. The forum at hand is a starting point for a debate on the topic of looting; it presents several perspectives on the use and misuse of metal detectors and the consequences for archaeological heritage, together with a broader perspective on looting in those countries where metal detectors are not a fundamental tool for finding archaeological remains. We deliberately avoided to include the well-known system that is being used in England through the PAS (see latest, Campbell 2013), as we preferred to present other, lesser-known examples from Europe and America; cases from Spain, Moldova, Flanders (Belgium), Estonia, Mexico, Bolivia, and Peru provide different viewpoints and examples, as well as the latest developments. This is only an outline of the forum, and we welcome new papers from different countries as well as answers to those included in this volume.
LEGAL CONSIDERATIONS IN THE MANAGEMENT OF THE SPANISH ARCHAEOLOGICAL HERITAGE
2022
The enactment of the current Spanish Constitution in 1978 caused a substantial change in the territorial structure of the Spanish State. It was organized into seventeen autonomous political-administrative bodies with legislative capacities in various matters, including the protection of historical and cultural heritage. The transfer of this competence to the autonomous institutions is contemplated by the current Spanish Constitution in article 148.1.16, and developed by Law 16/1985 on Spanish Historical Heritage, enacted in accordance with the provisions of article 149.1 and 2 of the Spanish Constitution. Several regulations are currently in force relating to artistic and cultural heritage, both at state and regional level, which require prior administrative authorization to carry out any archaeological intervention. This legislation has led to the appearance of various administrative control systems, as well as an increase in emergency archaeological interventions that has generated debates on various aspects of these actions and the value of archaeological finds.
Archaeological Heritage and Metal Detectors: Should We Be Managing Supply or Demand?
Andalusian legislation prohibits unauthorised intervention on archaeological sites, whether by professional archaeologists conducting excavations or amateurs searching for archaeological objects with metal detectors. The use of these devices is only permitted for research teams or in places where there is no reason to expect archaeological remains to be found. Violations of these provisions are punishable with fines and the confiscation of devices. Contrary to the popular belief of many northern European archaeologists who write about this issue, the underlying reasoning for these restrictions is not the regular use of such devices to obtain major archaeological spoils, much less a mistrust between professional archaeologists and amateurs, but rather reasons of an axiological nature. (1) The law establishes the public ownership of archaeological heritage as a social good, the value of which supersedes private interests and the right to private property. (2) The law also provides that archaeological heritage is a finite and non-renewable resource and establishes the obligation to transmit this heritage to future generations. (3) The law promotes archaeological activities guided by an interest in historical knowledge rather than the mere pleasure of locating ‘treasure’. The regular enforcement of this policy has led to both a decline in the number of detector users freely seeking archaeological remains at archaeological sites and a proliferation of detector users on beaches. It has also encouraged the integration of detectorists in archaeological research teams. This model emphasises demand management, based on the understanding that archaeological heritage is a finite, non-renewable resource. It thus stands in contrast to other models that aim to manage supply.
Assessing Damage to Archaeological Heritage in Criminal and Administrative Proceedings
Heritage, 2019
The economic assessment of damage to movable and immovable objects considered part of archaeological heritage is a matter of increasing interest, both at the legal level and in terms of government management. The primary reason for this interest is the urgent need to agree on a sound and reliable approach to economically quantifying not so much the cultural value of the damage caused as the civil liability for having caused it in those cases in which it was produced by a harmful human act. Assessment methods require a broad consensus to be considered reliable. The lack of consideration given to this matter has only made the absence of such a consensus more acute. This paper offers a mainly Spanish case-based analysis of the most common valuation methods for both movable and immovable archaeological objects. With regard to movable objects, it examines the problems involved in both the exclusive use of an object’s market price as its cultural value and the lack of justification for the chosen valuation system, concluding that current methods are insufficient. This insufficiency, also perceived by the authors of the expert reports used in the analyzed proceedings, has been dealt with arbitrarily. With regard to immovable object, it concludes that the systems currently used to assess the damage to sites are likewise insufficient, despite having been legally acknowledged in some cases. This paper will thus examine the methods used in environmental assessments—whose parallels with archaeological heritage are clear—and proposes that they be adapted for this purpose.
Preventive Archaeology in Spain
Preventive archaeology comprises a series of activities aimed at discovering and protecting the archaeological heritage before any type of incident may affect it. In cases when this is impossible, the aim will be to reduce the impact as much as possible, preventing the elements from being excavated or destroyed. Preventive archaeology is backed by laws and regulations on the protection of historical heritage, the land and the environment. This activity is carried out by the different administrative bodies responsible for historical heritage. This means that although preventive archaeology is the ‘star player’ in this area, in reality the main objective is to protect and safeguard our archaeological heritage. At present in Spain we lack any statistical data on the development of preventive archaeology. Each different region or Autonomous Community has its own special circumstances (see figure on p. 189), or even each area within them. For example, while the Community of Madrid produced the first report on impacts on the archaeological heritage as part of an Environmental Impact Study for a construction project in the early 1990s, the autonomous city of Melilla in northern Africa did not do so until 2001. For this reason, in this text we have generalised a very different series of situations, and at times may offer a simplified image of the actual situation in Spain regarding preventive archaeology. These variations are partly due to the different legal frameworks that exist, and partly to the development of management techniques for preventive archaeology in each Autonomous Community. In order to overcome this lack of standardised information, in an attempt to reflect the imbalances and changes that have occurred with the passage of time, we have included a series of figures in the text with information from different regions in the country, which serve to illustrate the different sections. Finally, we would like to make it clear that in recent years a great deal has been written, in very different ways, about preventive archaeology in Spain. This document is a summary full of its own ideas, but which also refers to others presented in the past by different specialists. As this is a brief summary, we have decided not to quote them within the text and to add a basic bibliography about the Spanish case.
Rational Grounds for Dialogue Between Archaeologists and Metal Detectorists in Spain
The sudden emergence of metal-detector users and subsequent swelling of their numbers rocked the field of professional archaeology due to the impact that the use of metal detectors has on the conservation of archaeological heritage. The situation has led to confrontation, polarisation and mistrust on both sides. These problems are particularly severe in countries such as Spain, where the law does not allow the unauthorised use of these devices. However, merely enforcing the law is not enough to resolve such conflicts, just as encouraging ‘treasure hunting’ is no solution either. This paper uses sociological models to explain the lack of communication and distance between the two groups with a view to finding principles that can be used to establish rational grounds for communication. Here ‘rational grounds’ is understood to mean foundations that will enable the convergence of the different interests whilst at the same time respecting the social function of archaeological heritage. To this end, a model is suggested based on a new wave of scientific communication aimed at including detectorists in archaeological research projects.
Power, Politics, Laws and the Management of Archaeological Heritage. An experience from Madrid
Spain has been one of the leading countries in the expansion of commercial archaeology. Seen as the least-bad option at the political moment when it was set, the framing law for heritage was not even close to the reality that was about to happen. After the ratification of the La Valetta Convention in 2011, a group of professionals decided to move forward, towards a new regulatory framework in Madrid. The process has been intense and led to a new law, but nothing close to what was expected. Political interests, corruption, responsibility, contestation and a surprisingly innocuous end mark this “story” about the latest legislative process for archaeological heritage in Madrid. This paper will expose the whole process of the latest heritage law in Madrid from the first consultations to the first full year of application, after the Constitutional Court voided about 20% of it. In the process, this paper will explore in a transversal way some of the topics of the Berlin DGUF conference like the role of institutions and professional associations, the psychology of power within archaeological professions, shifts of power, and the real impact of legislative actions.