Introduction
Since 1981, the Council of Europe (CoE) has warned of the threat posed to archaeological heritage by the indiscriminate use of metal detectors being used to supply the antiquities market. A few years later, in 1985, the member states of the Council of Europe, wishing to put an end to the offences that too often affect archaeological heritage, agreed on the European Convention on Offences relating to Cultural Property. However, the traditional rejection of a criminal law approach to the problem may explain why this Convention, opened for signature at Delphi in 1985, has not played a significant role, failing to attract enough signatories to enter into force. After the failure of the Delphi Convention, it was not until the Nicosia Convention (2017) that the Council explicitly urged countries to implement punitive measures against actions that harm – or have the potential to harm – cultural heritage.Footnote 1
The lenient stance on metal detectors found in the Convention for the Protection of the Archaeological Heritage of Europe (Revised) (Valletta 1992) is widely recognized as a response to concerns raised by the UK’s representative. During the drafting of the Convention, he cautioned that a stricter tone would make it difficult for the UK to ratify the treaty.Footnote 2
This ambiguity reflected the varying approaches different countries adopted to address the impact of metal detectors on archaeology. In the 1990s, two distinct models emerged: a liberal model, which main contribution has been the creation of a voluntary system of cooperation for recording finds on an online database through the Portable Antiquities Scheme.Footnote 3 This model is based on legal systems in which property rights take precedence over the protection of cultural propertyFootnote 4 and very little punitive action is taken against offenders;Footnote 5 and a conservationist model, which required prior authorization for the use of metal detectors and prosecuted unauthorized activities.Footnote 6
The liberal model, mainly developed in England and Wales, spread to several Northern European countries, while the conservationist approach gained prominence in Southern Europe, with Spain taking a robust stance in its implementation.
These models might appear to be similar to those established by Merryman in relation to national cultural policies.Footnote 7 For this author, clearly in favor of greater freedom of international trade in works of art, there were nationalist countries that protected their assets against sales to other countries, while the so-called internationalists were in favor of being able to acquire works from other countries for their collections. For Merryman, free trade would put an end to illicit trade. Obviously, Merryman does not emphasize that such models coincide, broadly speaking, with a division of wealth and power. In any case, all countries, even buyers, have laws that protect their cultural assets from exportation, not only illicit exportation but also exportation that decapitalizes the country’s cultural capital.
Despite widespread support for the liberal model,Footnote 8 it faced growing criticism both outsideFootnote 9 and within the UK.Footnote 10 Even the European Association of Archaeologists’ Committee on the Illicit Trade in Cultural Material has included in its mission the development of a new European standard for the use of metal detectors in locating archaeological objects.Footnote 11
Between these two approaches, many countries have adopted a neutral stance. While they express concern over the activities of detectorists and the illegal antiquities trade, they lack the resources or political will to fully commit to a more robust conservationist model. Adherence to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the key international instrument against the plundering and illicit trafficking of cultural property, has not resolved these internal challenges, as the Convention has not had direct legal impact on the domestic laws of States Parties, significantly weakening its effect in combating looting. It is widely recognized in the literature that the range of rules contained in the 1970 UNESCO Convention falls short.Footnote 12 The difference in the political weight of the countries that receive and supply the objects; the complexity of national laws for the purposes of private law, as it is not always easy to determine which rule of law applies to a given object;Footnote 13 and the techniques for tracing the provenance of the objects all complicate and prolong the processes, making them anything but exceptional. In short, the recent international reality shows that civil actions for the return of objects are only undertaken when very important objects of great economic value are at stake, therefore justifying the cost of legal proceedings.
In this context, countries looking to the Nicosia Convention as a basis for introducing legal measures to combat archaeological looting may find the Spanish experience particularly instructive. In its early stages, Spain committed significant legal, human, and material resources to address rampant archaeological plundering, making it a valuable reference for other nations.
This article examines the origins and evolution of artifact hunting in Spain, with a particular focus on Andalusia. It also analyses the legal measures implemented over the past three decades and the outcomes achieved, presenting an intervention model aimed at preventing the looting of archaeological heritage with metal detectors.
The beginning: Andalusia became the El Dorado of artifact huntersFootnote 14
In the parish of Santa María de Écija, a medium-sized town in the province of Seville and one of the black spots of archaeological looting in Spain,Footnote 15 there is a cloister housing a collection of archaeological artifacts, mainly from the Roman period. It is not for their historical interest that this chapter begins by mentioning them, but rather because they bear unwitting witness to the advent of artifact hunting in Spain.
The collection’s origin dates back to the 1940s, when the parish priest began to gather artifacts found by chance at the town’s construction sites. Word of the priest’s collecting zeal soon spread, and in the following years, singular pieces were donated to him (capitals, sculptures, columns, inscriptions, bases, etc.), free of charge or in exchange for a modest fee.Footnote 16
The collection stopped receiving donations in the 1970s, curiously, just as more finds were beginning to be made in the municipality. However, the new finds were no longer happening by chance, but rather through a deliberate effort on the part of the finders: they were being found using metal detectors, whose users knew there was a lucrative market for these objects. Whether the original collection was built out of ignorance or a desire to keep these vestiges, which bore witness to the past, in the parish collection, the truth is that artifact hunting put an end to it, fostering a profit-driven view of ancient artifacts.
The first metal detectors came into the country through the joint-use Spanish-American military bases, mainly Morón de la Frontera and Rota. However, the Americans using them were not seeking ancient artifacts, but militaria, that is, military artifacts, usually from the Spanish Civil War.Footnote 17 Nevertheless, they were the channel through which locals were able to acquire these tools.
The first generation of artifact hunters in Spain emerged in the late 1970s and early 1980s. At the time, local scholars interested in local studies coexisted alongside those who saw artifact hunting as a means of making a profit. Indeed, in many municipalities, the lingering influence of the Misión Rescate TV show, broadcasted by Radio Nacional de España and Televisión Española in the 1960s and 1970s, could still be felt. Through it, teachers and students at schools around the country were recruited to search for and dig through the soil of archaeological sites. Such activities encouraged the idea that direct intervention was essential for archaeological heritage because it was being lost, nobody knew about it, and, in any case, such actions certainly were not illegal. Some people (teachers, local scholars, or simply local history buffs) viewed metal detectors as a new way to channel their interest in contact with history.Footnote 18 These people make up the bulk of what are known as “arqueofurtivos de fin de semana” [clandestine weekend archaeologists] in Catalonia.Footnote 19 In Andalusia, they are colloquially known as piteros, or “beepers,” for the sound the device makes when operated. In any case, the category and modus operandi of this group of users are identical in both Spanish regions.Footnote 20
At first, such scholars were consulted by other non-expert users to catalogue what they found. This led some of them to become intermediaries between the finders and the antique dealers who went down to these towns to buy up the huge number of artifacts coming to light. But this mediation soon ended, and the relationship between the scholars and artifact hunters soured into one of distrust. The assistance the scholars had provided for the classification of the finds was replaced with self-taught conjecture. Every artifact hunter in Écija, Osuna, or Lantejuela had a copy of Roman Coins & Their Values Footnote 21 and/or Compendio de las Monedas del Imperio Romano,Footnote 22 with which they learnt to catalogue the coins they found and determine their price.
Once the scholars had been sidelined, the artifact hunters did not try to organize associations. They preferred to go out to the countryside alone or, sometimes, in pairs or groups of three, albeit only when there were previous ties of friendship amongst them, given the fierce rivalry between the users of metal detectors from different towns. These artifact hunters can be divided into two main groups, depending on how often they go into the field and what they do with the fruits of their activity. On the one hand, there are occasional detectorists who go out on weekends to see what they can find. They usually do it in the outskirts of the towns they live in, and the destination of the objects they do find is usually either their own collections or, more commonly, sacks and buckets for a subsequent sale as scrap. However, when they do find objects of interest that they believe could fetch a profit, they sell them through marketplace websites such as eBay or Wallapop. On the other hand, there are the professionals. These users go out all week long, travel long distances, form networks, and research the places to be looted in advance. Their modus operandi is to detect structures – mainly tombs – by day and then return at night to remove artifacts from a necropolis by the light of their vehicle’s headlamps. The search is no longer only, or even mainly, for coins or other metal objects but, rather, for grave goods that can be sold to collectors through intermediaries. The so-called “clan de los sevillanos” [Sevillian clan] was one of the most active groups in this regard.Footnote 23
This abundance of supply meant that seekers of archaeological artifacts – whether for their own collections or for foreign museums – could source them in Andalusia. In this case, the use of metal detecting devices was not driven by a prior demand for coins or other objects; rather, the early interest of scholars and enthusiasts attracted the attention of intermediaries and collectors and, in some cases, even led to the emergence of collections owned by people who had never previously considered having one. Nevertheless, once the circuit had been created, the ease of sale stimulated the supply, resulting in greater pressure on archaeological heritage.Footnote 24 In fact, government inaction and the increased supply encouraged antique dealers to portray themselves as saviors of historical heritage, to which end they lobbied for collecting incentives in a future law.Footnote 25 One singular case was that of Ricardo Marsal, who got his start as a buyer with the aim of mitigating the looting of the Alhonoz site – located on his property – and who eventually came to own a collection of more than 100,000 objects, donated to the Government of Andalusia after it was seized by the Guardia Civil [police corps].Footnote 26
In that context, the response was quite feeble. On the one hand, museums were mired in despair and impotence. Nevertheless, despite their limited economic power to compete with the black market, they managed to prevent some artifacts from being taken out of the country.Footnote 27 On the other hand, although the police authorities were well aware of the problem of archaeological looting – which was reported on quite bluntly in the press – police response at the time was not very effectual.Footnote 28 Although, beginning in 1979, the Spanish Ministry of Culture’s Directorate General for Artistic Heritage urged the civil governments of Andalusia and Extremadura to order the Guardia Civil to pursue such looting,Footnote 29 the law enforcement agency lacked specialized personnel, and the cases that were brought to court were dismissed or resulted in acquittals.Footnote 30
Andalusia was the El Dorado of artifact hunters. They could roam free through the countryside in search of the best sites to dig through, there was a clandestine trade network to sell their finds, and they did all of this with complete impunity. Against this backdrop, the use of metal detectors soon spread to many other Spanish regions, such as ExtremaduraFootnote 31 or Catalonia,Footnote 32 giving users a false sense of security. However, that perception was misguided. In reality, this spread led to an increase in archaeological artifact hunting and a growing urgency to do something to stop it.
In the period under study here, from the late 1970s to the mid-1990s, two different social spheres challenged this use of metal detectors. First, farm owners saw how artifact hunters would often churn up vast areas of cultivated or recently sown land. This practice led to more than a few confrontations, and whilst they did not put an end to the phenomenon, they did cause the artifact hunters to change their modus operandi and start working by night. Second, some schools organized campaigns, involving teachers and students, to sow sites that had been hard hit by looting with metal shavings.Footnote 33 Although their numbers were all but symbolic, the initiative highlighted the rejection of artifact hunting by a group that had originally applauded it, back when the devices were used by local scholars and hobbyists. The main consequence of these disaffections was to contribute to the aura of harmfulness that, together with its unlawfulness, reinforced the idea of the illegality of the practice.
Academia also played a role in this phenomenon, not so much, perhaps, through the use of metal detectors for research – something that did not begin until much later – as by interacting directly with the fruit of the acts of looting.Footnote 34 Although voices have been raised against the use of metal detectors,Footnote 35 few archaeologists in academia have proved able to resist publishing on interesting pieces belonging to collections, notwithstanding their suspect provenience and lack of context. This practice has contributed to the laundering and revaluation of these objects, including notable, although fortunately infrequent, cases in which academics have even refused to cooperate with the justice system, as in the case of the Orientalizing period thymiaterion of Villagarcía de la Torre (Badajoz).Footnote 36 This attitude was roundly criticized by other colleagues.Footnote 37
The media did highlight the drama that archaeological heritage was experiencing and the imperative need to do something about it.Footnote 38 All of this increased the level of social alarm and prompted the public authorities to respond.
The administrative and criminal legal response
To better understand the nature of the response in Spain to archaeological looting, it is necessary to go back to the 1970s, when the weak Franco-era cultural authorities proved unable to contain the wave of thefts at chapels, churches, and museums, perpetrated, amongst others, by René Vander Berghe,Footnote 39 also known as “Erik the Belgian,” who was twice captured and sentenced to prison. That insecurity affected, to a perhaps even greater extent, archaeological heritage, which, as noted, was at constant risk of being dug up by artifact hunters. This situation outraged professional archaeologists, who discussed it in the media.Footnote 40
Against this backdrop, it is easier to understand how the democratic Spanish Constitution of 1978 not only established as one of the guiding principles of the country’s social policy the obligation for the public powers to conserve historical heritage, regardless of its legal regime and proprietary ownership, but also provided that criminal law would punish attacks against this heritage (for example, Article 46, Spanish Constitution).
Here, it is necessary to explain a peculiarity of ius puniendi in Spain, specifically, in matters of archaeological heritage. It is carried out in two ways. The first is through administrative sanctions.Footnote 41 This is an exorbitant administrative power that remains an oddity in the European context.Footnote 42 The second is through the Criminal Code, which likewise provides for a catalogue of crimes against historical heritage and, especially, against archaeological heritage.Footnote 43 In theory, which one is used depends on the severity of the offence. In the cases of interest here, the mere unauthorized use of a metal detector would be an administrative offence, whilst digging through immovable archaeological structures in order to obtain movable property would be considered a criminal offence.
This constitutional mandate took time to materialize. Moreover, the fact that each of Spain’s self-governing regions – or “autonomous communities” – has its own law on historical and cultural heritage has led to significant imbalances between them in terms of both the legal regime and practice.Footnote 44
Following the adoption of the new Constitution, it was necessary to update the Ley del Tesoro Artístico Nacional [Law on National Artistic Treasure] of 1933. The inspiration for the new law came from the Italian proposal based on the conclusions of the Franceschini Commission,Footnote 45 which, despite never becoming law in that country, has had a decisive influence on Spanish law.Footnote 46 However, although the Italian text did consider archaeological looting – primarily of Etruscan tombs – it lacked a sanction regime.
As a result of this reform, in 1985, the Ley de Patrimonio Histórico Español [Law on Spanish Historical Heritage, LPHE] was passed, although it did not address the problem that artifact hunters posed to the conservation of archaeological heritage. It was not until the enactment of regional laws (currently, one per autonomous community) that the use of metal detectors without government authorization would be classified as an administrative offence, and anyone breaking the law would be prosecuted.
It is a de facto, as opposed to de jure, prohibition. In other words, whilst the laws subject the use of metal detectors to prior authorization, they do not legally ban their use. However, because this authorization is considered exceptional; in practice, it implies a prohibition.Footnote 47 The legal regime for administrative authorization for such cases has been questioned in favor of other types of licensing concessions based more on trust than on strict administrative regulation.Footnote 48 However, the Regional Government of Andalusia has gone a step further and, with a recent reform of the Ley de Patrimonio Histórico de Andalucía [Historical Heritage Law of Andalusia], approved in 2024, aims at explicitly including the prohibition of the use of metal detectors throughout the region, with exceptions relating to their regulated use in archaeological activities, national security and defence, or infrastructure maintenance and repair.
Leaving aside this new reform of the Ley de Patrimonio Histórico de Andalucía, the remaining regional laws, although there are slight variations in the legislative techniques used to classify offending behaviors as crimes, share several features. Because the laws treat the use of metal detectors as a risk to archaeological heritage, they move the protection barrier forward, subjecting their use to prior administrative consent. Since archaeological artifacts are not found exclusively in what are administratively considered sites (inventoried and delimited or otherwise), the offence is committed regardless of where the user is. However, in practice, areas that cannot be home to a site – because they are recent geological formations, such as beaches, or located at uninhabitable altitudes, such as ski slopes and resorts – are excluded. In this regard, ploughed areas are considered archaeologically fertile and, therefore, are not exempted from the need for authorization. Like all risk prevention offences, this administrative offence is one of mere activity; that is, no find needs to be made to commit it. This type of offence is punished with a fine reflecting the magnitude of the damage. Furthermore, as these fines often cannot be collected due to the insolvency of the fined parties, since 2007, Ley de Patrimonio Histórico de Andalucía provides for the seizure of the detector device as an additional penalty.Footnote 49
At the same time, various regulations were passed, such as Ley 30/1992, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común [Law 30/1992, on the Legal Regime for the Public Sector and Common Administrative Procedure], or the Reglamento del Procedimiento para el Ejercicio de la Potestad Sancionadora [Rules of Procedure for the Exercise of Sanctioning Powers], approved by Royal Decree 1398/1993, which made it possible to draw up a constitutional legal framework for the exercise of administrative sanctioning power.
In 1995, the Spanish Criminal Code (CC) incorporated, with little success, two crimes of damage to historical heritage, including archaeological heritage: one for malicious damage (Article 323 CC) and another for damage caused by serious negligence (Article 324 CC). However, their convoluted wording did little to facilitate their application.Footnote 50 In 2015, Article 323 was amended to include a type of damage to terrestrial or underwater archaeological sites referred to as expolio [looting], although it does not explicitly state what this activity is or how it differs from the crime of specific damage to archaeological heritage. This ambiguity has led to extensive debate over its content. One part of the literature advocates identifying the content of the looting offence with the use of metal detectors when their operation results in slight shifts in the soil.Footnote 51 Some public prosecutor’s offices are even classifying the use of metal detectors in the vicinity of known archaeological sites as crimes of damage to archaeological heritage or attempted looting.Footnote 52 This results in a de facto encroachment of criminal law into the sphere of administrative sanctions, which, in turn, increases the pressure on illegal artifact hunting.
Defence of legality
In the 1960s and 1970s, the cultural administration in Spain consisted of a handful of honorary positions whose holders hardly had any technical background or capacity to act. Even if they had known of illegal removals – carried out by metal detector users or otherwise – there was little they could do other than convey this information to the mayors of the towns where the removals had occurred in the hope that they, in turn, would report them to the Guardia Civil for investigation. Were this lengthy bureaucratic process to have any result at all, it would be months after the events had taken place, when there was virtually no chance of success.
Contemporaneous joint efforts by archaeologists and police in Extremadura likewise failed to yield notable results in terms of criminal convictions.Footnote 53 However, they were useful insofar as they left a record of the illegality of these behaviors. In Catalonia, the other autonomous community for which data are available for the 1980s, joint actions by the Mossos d’Esquadra [Catalan regional police] and archaeologists were also sporadic.Footnote 54
Although the Cuerpo Nacional de Policía [National Police] had a task force dedicated to investigating crimes against historical heritage since 1977, its main focus was art theft.Footnote 55 It was due to the impetus of the LPHE, which provided for the creation of police units especially dedicated to the prosecution of crimes against historical heritage in general, and archaeological looting in particular, that specialized units were created in these fields, in both the Policía Nacional and the Guardia Civil – which attributed these powers mainly to the Servicio de Protección de la Naturaleza [Nature Protection Service or Seprona].Footnote 56 However, as noted, it was the regional legislation that classified the offending behaviors as crimes, making it possible for complaints filed with the administrative authorities to result in sanctioning proceedings.Footnote 57
To improve these services, several autonomous regions began to offer specific training and awareness-raising courses for these police units concerning the fight against archaeological looting. To extend these courses’ effectiveness beyond mere attendance, short manuals were published explaining how to proceed in investigations of archaeological looting.Footnote 58
Separately, concern for the proliferation of crimes against historical and, quite especially, archaeological heritage led to the specialization of public prosecutors in this field, together with environmental and town-planning offences. The first manifestation of this specialization emerged in Andalusia, with the creation of the first Red de Fiscales Medioambientales [Environmental Prosecutors Network] in 2004,Footnote 59 subsequently established on a national scale in 2006.Footnote 60
In the 1990s, all the aforementioned factors began to come together, enabling a practical response to artifact hunting that did away with the sense of impunity that had prevailed until then: social awareness,Footnote 61 both amongst the general public and at the political and professional levels; the criminal and administrative legislative framework for the exercise of ius puniendi; government agencies more directly involved in the territory and equipped with professional experts; and, finally, specialized bodies in both the Policía Nacional and the Guardia Civil, as well as in the provincial public prosecutors’ offices.
The first actions taken by the Guardia Civil against archaeological looting mainly consisted of site surveillance as a preventive measure. This led to the filing of the first reports and the identification of people caught using metal detectors at archaeological sites. These reports were forwarded to the regional authorities for the initiation of the appropriate administrative sanctioning proceedings. Once in operation, the administrative machinery began to produce its first effects in the second half of the 1990s. In nearly all the autonomous communities, sanctioning proceedings were initiated against artifact hunters who had been caught in flagrante delicto. Footnote 62 However, for various reasons, many autonomous communities abandoned the practice towards the end of the decade and in the early 2000s in favor of bringing criminal charges, as in the cases of Castilla y LeónFootnote 63 or Galicia.Footnote 64 In other autonomous communities, such as MadridFootnote 65 or Aragón,Footnote 66 it has recently been reactivated. But two autonomous communities have successively led on this type of administrative reproach for the unauthorized use of metal detectors: first, Andalusia and, more specifically, the province of Seville,Footnote 67 and, today, Extremadura.Footnote 68
Whilst there is no unified count of sanctioning proceedings in Spain, it can conservatively be estimated that several thousands have been carried out in the last thirty years. It should also be noted that the administrative sanctions imposed are usually challenged by means of judicial review. However, in most cases, the courts have ruled in favor of the sanctioning authorities, confirming the fines imposed.Footnote 69
Police action has not solely – or even mainly – consisted of the filing of complaints through administrative channels. Rather, in keeping with its investigative role, it has largely focused on identifying networks dedicated to antiquities looting and trafficking, ranging from those who systematically use metal detectors to hunt for artifacts, equipped with the necessary prior information to select the best places to loot – whether due to weaker surveillance or the corruption of their guards – to the main recipients or collectors.Footnote 70 The first police investigations aimed to combat the illicit trade in archaeological artifacts at fairs and street markets in different Spanish towns and cities, such as in the Plaza del Cabildo in Seville or the Plaza Mayor in Madrid.Footnote 71 However, the judicial consequences were always the same: a failure to press charges against the parties involved and the restoration of the objects to them. This happened because it was impossible to prove the artifacts’ provenance or the date on which they had been removed from the subsoil, even though some of them still bore traces of soil. And whilst the illicit market suffered as a result, and some of the parties involved did give up this illegal activity, the message these failures sent to professional looters was that their impunity remained intact.Footnote 72
Separately, it is worth recalling that in the 1990s, a large number of private collections included archaeological artifacts that were the product of looting. The first major police operations were carried out in that decade. The main one was Operation Tambora in 2001, which resulted in the seizure of the aforementioned collection of Ricardo Marsal, with more than 100,000 objects from sites in the Guadalquivir River Basin,Footnote 73 but it was not the only one. In Operation Cerro GilFootnote 74 and Operation Pozo Moro,Footnote 75 the Guardia Civil not only seized a large number of artifacts but also acted against small-time collectors who played the role of local scholars.
These operations were followed by others (Lirio, Dionisos, or Pitufo), in which thousands of objects were seized and dozens of people were charged, albeit with a smaller than expected impact in terms of the judgments. This process culminated in Operation Tertis, carried out by the Guardia Civil in 2007, possibly the largest operation ever undertaken against archaeological looting in Spain. More than 300,000 pieces were seized (although not all were the product of looting), and 53 people were charged. However, three years later, the investigating court dismissed the case and ordered that the objects be returned to their owners.Footnote 76 The reason given by the investigating magistrate was that the police investigation had failed to prove the pieces’ illegal provenance. The Guardia Civil recognized that it had been a mistake to focus on collections, taking their illegal provenience for granted. Since then, the investigative criteria have changed. Now, the investigators first document the objects’ illegal removal; they then follow the thread from there to the final recipients.Footnote 77 Successive operations, such as Operations Necrópolis or Badía, have followed this pattern. Using surveillance and camera footage of the suspects as they loot, investigators then track the objects and online sales until a sufficiently solid case can be made to bring sure charges of criminal conduct.
One of the most interesting aspects of this succession of police operations may be the smaller quantity of archaeological artifacts seized, which suggests that the collections are recent. This is not due to ignorance on the part of investigators or the police of potential hidden collections, as large covert collections may not exist in Spain or even outside Spain with objects from the country. Spanish authorities were aware of the case of the lots of pre-Roman helmets from Aranda de Moncayo (province of Saragossa), although they inexplicably failed to take all the necessary steps to stop the site’s looting.Footnote 78 This impression is corroborated by the abundance of forgeries found in these seizures, as well as in the lots offered on various portals.
Likewise, both the administrative and the criminal fight against looting have made it necessary to design reliable systems for assessing the damage caused to sites. Initially, criminal cases faced the obstacle of the low value of the damage since only the objects seized by the police from the piteros were assessed – in most cases, a few bronze coins or buttons from a modern military uniform. The value of the damage was not high enough to be considered a criminal offence. Thanks to the duality of the Spanish ius puniendi, in cases of administrative offences, it was not necessary to assess the damage, but rather the seriousness of the nature of the administrative offence. In the case of users of metal detector devices, the unfulfilled duty of having requested prior authorization was considered. For the administrative offence, it is irrelevant whether objects have been found or not because the core of the offence is an unfulfilled obligation. Logically, if objects have been found, this will be an aggravating factor for the sanction, but nothing more. Thanks to this circumstance, administrative sanctioning procedures could be carried out, which culminated in fines for the people reported. Only cases of “severe plundering” (that is, when archaeological structures are affected) were prosecuted through criminal proceedings.
Another significant issue that needed to be addressed was the reliance on the notion of the “priceless value” of archaeological remains. It is necessary to put forward reliable quantifications based on the very essence of archaeological heritage, as well as the conceptualization of the effects of the harmful action. Fortunately, Spain is making progress in this regard on an international scale.Footnote 79
Results
No social problem can be solved exclusively by police means, and archaeological looting is no exception. When the issue of the coexistence of metal detector users and archaeological heritage conservation is addressed, there tends to be a major division between countries that adopt a “liberal model” and those that use a “restrictive model,” with most of the emphasis being placed on the benefits of the former.Footnote 80 We believe that archaeological heritage management in Spain cannot be called “restrictive” insofar as it does not restrict any pre-existing right to use a metal detector to hunt for archaeological artifacts.Footnote 81 In our view, the main difference between Spain and those countries that use a “liberal” (or, perhaps, more accurately, “permissive”) model lies in the priority that Spanish legislation places on the conservation of archaeological heritage, because of its social role, as opposed to the supposed right to collect or sell such artifacts for personal gain, one of the main drivers of metal detector use in England.Footnote 82
The Spanish conservationist model has proved to have positive effects, especially in terms of containing the number of metal detector users, who total less than 4,000.Footnote 83 One could say that it has contained the so-called cobra effect, meaning situations in which measures intended to solve a problem end up making it worse. In this sense, although the permissive model seeks to minimize the negative impact of metal detector use on archaeological heritage, it has increased the number of people who use these devices, irremediably increasing the pressure on it. It must not be forgotten that archaeological artifacts are especially vulnerable to damage and destruction, therefore, any increase in indiscriminate hunting cannot have positive consequences, especially in countries with legal systems endowed with weak structures for the protection of archaeological heritage.Footnote 84
In any case, the exercise of ius puniendi is only one piece of the strategy to minimize the adverse effects of illegal metal detector use on archaeological heritage. The other mainly consists of incorporating those users who so wish into archaeological research projects in which the use of these devices is critical to improving the archaeological record.
The Spanish legal framework for archaeological heritage subjects both excavations and surveys or other activities that might impact archaeological artifacts to prior authorization by the competent cultural authority. This requirement is primarily meant to verify the existence of a research project detailing the aims and methodology of the intended archaeological intervention, even in the case of preventive actions.Footnote 85
Within this framework, which has generally excluded metal detector users, a productive integration of amateur detectorists is taking place,Footnote 86 despite the structural separations maintained by archaeologists and the users of these devices as social stakeholders.Footnote 87
This integration was brought about by projects undertaken in collaboration with the Spanish memorialist movement to locate and excavate mass graves of people executed by the pro-Franco forces during the Spanish Civil War and the subsequent repression. To locate the mass graves, it is essential to find the shells from the bullets fired during the execution, as the grave is usually close by.Footnote 88 This has led to studies of battlefields, camps, and Roman roads, to cite just a few examples.Footnote 89
Channelling the participation of metal detector users in archaeological research projects has led to the recognition of the importance of “citizen science” or “citizen scientist” programs. Such programs blend education and participation in projects in which interested members of the public can work alongside scientists, combining elements of scientific outreach models.Footnote 90
To arrive at these and other collaborations, both archaeologists and metal detector users have travelled a path parallel to that of the defence of legality. In the late 1990s, we participated in online detectorist forums such as Detectomania.com, discussing the legality or illegality of the use of metal detectors. It was through that experience, which lasted more than three years, that we came to understand that whilst our “language games” were antagonistic,Footnote 91 there were possibilities for dialogue. However, that dialogue required prior recognition of the legal framework. Therefore, after warning multiple times that the website should not advise users on where to dig to find ancient objects, we ultimately filed a complaint with the Prosecutor’s Office of the High Court of Justice of Andalusia, which led to the website’s voluntary closure.Footnote 92 Since then, a myriad of working groups, meetings, and forums with detectorist associations have been held, most recently in Madrid in December 2019, before the COVID-19 pandemic and the ensuing shelter-in-place orders.Footnote 93 The positions are no longer so confrontational, and we are able to discuss collaboration calmly. In fact, the metal detector users offer their own experience to identify the traces left by various types of search patterns.Footnote 94
At the turn of the century, it was not uncommon to see demonstrations by metal detector users protesting the pressure they were being subjected toFootnote 95 and, logically, some remain outside the law, trusting they will never be caught … until they are.Footnote 96 On the other hand, beach detectorism has emerged as an option with an increasing number of followers.
As one of the authors (IRT) was writing this paper, in June 2024, he went to a coastal town in the province of Cádiz with his family for a weekend. Sunday morning, the beach was bustling with a group of people in a large fenced-off area. He quickly realized that it was a metal detecting contest. There were around a hundred participants. Thirty years ago, you would only occasionally see someone using a metal detector on the beach at dusk; now, dozens of them were engaging in their favorite hobby, namely, finding buried objects using a device especially designed for that purpose. They seemed to be enjoying the contest, but for him, the most important thing was that they were doing it in a place that posed no risk to archaeological heritage.
We do not have the data yet to evaluate the extent to which the two lines discussed in this paper for combating archaeological looting have actually helped to displace activities from the countryside to the beach, but we are reluctant to believe the two phenomena are unrelated. While looting still exists in Spain, the impact of metal detectors seems to be lower – especially in areas where it was large forty years ago – and new forms of communication and collaboration with detectorists are on the rise.
While watching the contestants on the beach with curiosity, the title for this paper (courtesy of the Coen brothers) came to mind. Spain might be no country for furtive detectorists, and an alternative model to deal with this phenomenon.
Acknowledgments
This paper has been written within the R&D&I project “ValTArq,” with reference PID2021-124498NB-I00P and funded by MICIU/AEI /10.13039/501100011033 and by ERDF, EU.
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