The Problems of Legal Regulation of the Land Reclamation after the Illegal Coal Mining by the “Black Diggers” (the Kemerovo region example)

The article deals with the issues of the legal “irregularity” of criminal and material responsibility of the “black diggers” for the illegal production of natural resources in the territory of the Kuzbass. The schemes of production and selling the coal are very different. That is why it is rather difficult to consider them in terms of criminal, arbitration, and administrative processes, especially by considering the issues of reclaiming the lands broken by such illegal activity. This is evidenced by the limited judicial practice of arbitration courts and courts of law of the Kuzbass. There is also no similar practice in other territorial subjects of the Russian Federation. Thus, there is a necessity in urgent developing of the methodical recommendations for the law enforcement officials on the calculation and compensation for the damage, considering the escalating statistical data on the illegal activity of the “black diggers”. Since the production and land reclamation caused by the coal mining are technologically interconnected, there must be an assigned surveillance of the use of a fund and the order of land reclamation to the prosecutor’s office on the surveillance of respecting the lawfulness in the coal-mining industry. These actions are provided for the coal-mining enterprises. For a long time, the “black diggers” have been producing the natural minerals which are the property of the state and they have also been able to escape the attention of the Russian legislation.


Introduction
Following our previous research [1], there was a definite purpose: the struggle against the "black diggers" via the coordinated work with the reliable and socially-responsible companies fulfilling the commitments made to the regional residents. The actual paper is considering the issues of reclaiming the broken land areas due to the criminal activity of the "black diggers". The study of judicial practice of arbitration court of the Kemerovo region demonstrates that the judgments do not define the obligation for reclamation of the land areas.
Ideally, the reclamation of lands has to be carried out on the basis of the reclaiming project which is approved as a part of technical documentation on mining (license, mining allotment). Also, the order and terms of reclamation have to be specified in the lease agreement of lands in case of granting the respective land area to a user of resources or land.
In both cases, a land user has to get the approved reclaiming project of lands by the time of the beginning of use of the respective land area but it is not always observed practically. The reclaiming project is often lacking not only by the time of the beginning of the development of the land area but also till the expiry of use of such area.
It is rather easier for an owner or the authorized body representing the interests of the owner to recover compensation for harm done to the land resources or for an unjust enrichment as a result of unauthorized use of the land areas from the violator, than to ask for the development of the reclaiming project and to carry out such reclamation by a court decision. Such situation takes place in case of unauthorized use of the land areas including the resources users if the approved reclaiming project is lacking.
Thus, the "black diggers" without the documentation determined by the law leave behind the unsuitable "for-further-use" land areas. The region annually loses tens of millions and collects less taxes. To struggle against the illegal business, there was created the "coal special troops". Although, the situation remains the same. The experts consider that the "black diggers" will have traded by the time when the tougher punishment for this crime is credited in the Criminal code. In July, 2019, the governor of Kuzbass submitted the issues of increase in penalties for the illegal coal mining for the consideration of deputy corps: the officials -from 800 thousand to one million rubles with the confiscation of instruments of production, the legal entities -from 15 to 80 million with the confiscation of the equipment. The governor believes the relevant amendments made to the Criminal Code of the Russian Federation will help not only Kuzbass but also other regions which face the same problems. The deputies supported the governor's initiative. The amendments were prepared and sent to the Board of Legislators at the Federation Council of the Russian Federation and also to the Government of the Russian Federation and the Supreme Court for their expert assessment.

Materials and methods
The empirical material for making up the analytical and statistical reviews were taken from the legal portals.
One studied the materials of judicial practice of arbitration courts and courts of law concerning the reclamation of lands after the illegal coal mining and the illegal activity of the "black diggers" in the Kemerovo region 2015 -2019. These used materials are of the following official Internet portals: the official Internet portal of the state automated system "Pravosudie" (En. Justice) (http://sudrf.ru), the portal of legal statistics of the State Office of Public Prosecutor of the Russian Federation (http://crimestat.ru) and the official Internet portal "Federal Arbitration Courts of the Russian Federation" (http://arbitr.ru).
The empirical material was processed by retrospective, comparative, and statistical techniques of the analysis using the software of Excel 2010 and Statistica 6.5.

The factors causing the illegal activity of the "black diggers"
According to the Russian Federation Government decree of 10.07.2018 No. 800 "On Carrying Out Reclamation and Preservation of Lands" [2], the land reclamation is the actions for prevention of degradation of lands and (or) recovery of their fertility by means of bringing the lands to the state which is suitable for their use according to the determined and allowed usage and also by the elimination of the effects of soil pollution, the restoration of a fertile soil layer, and the creation of protective forest plantings.
This causes the plurality of factors of the illegal activity of the "black diggers". Our research shows the existence of at least seven of them: Since 2015, on the basis of the annual report of the Department of natural resources and ecology of the Kemerovo region "On status and environmental protection of the Kemerovo region" [5] we made up the comparative table (see Table 1). The Table 1   After studying the judicial practice of arbitration court of the Kemerovo region ( Table  2), we can come to the following conclusions: (a) the small number of the considered cases on issues of obliging the "causers of harm" to reclaim land resources; (b) a few cases connected with the compensation of damage made to the land resources. Generally, the "causers of harm" are imposed a penalty and the arbitration court obliges such persons to reclaim the land area only in certain cases. One may assume that such situation is connected with the peculiarities of gathering and setting the evidential base of criminal violations of the rules of safety measures at coal mining work including the illegal activity of the "black diggers". Some scientific publications [6][7][8] generally pointed out one peculiarity, viz. the insufficient readiness of criminalistic and operational investigation means and methods of searching and collecting the information which has the procedural value concerning the persons who can be owners of the broken land areas, the persons who have to repair a damage, the persons who are authorized to reclaim land resources. * is the recovery of damages from the persons who are not licensees, being recognized as "causers of harm" to land resources by court, e.g. due to the illegal coal mining.
According to the decision of arbitration court of the Kemerovo region of September 25th, 2019 on case No. A27-10607/2019 [9], the court did not manage to establish the owners of the disputed land area and it did not fully succeeded to oblige the party to repair a damage and to perform the land-reclaiming works. The Resolution the Supreme Court of the Russian Federation [10] merely points to the fact that the courts apply criminalistic means on the establishment of relationships of cause and effect between the done harm and persons who did this harm. However, we do not find any researches on this subject in criminalistic literature.