Article 228 of the Criminal Code: liability for illegal storage and distribution of narcotic substances

ST 228.1 of the Criminal Code of the Russian Federation . Illegal production, sale or shipment of narcotic drugs, psychotropic substances or their analogues, as well as illegal sale or shipment of plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances

1. Illegal production, sale or shipment of narcotic drugs, psychotropic substances or their analogues, as well as illegal sale or shipment of plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, -

shall be punishable by imprisonment for a term of four to eight years, with or without restriction of freedom for a term of up to one year.

2. Sale of narcotic drugs, psychotropic substances or their analogues, committed:

a) in a pre-trial detention center, correctional institution, administrative building, administrative structure, educational organization, at sports facilities, railway, air, sea, inland water transport or subway, on the territory of a military unit, in public transport or premises used for entertainment or leisure;

b) using the media or electronic or information and telecommunication networks (including the Internet), -

shall be punishable by imprisonment for a term of five to twelve years with a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years, or without it, and with or without restriction of freedom for a term of up to one year.

3. Acts provided for in parts one or two of this article, committed:

a) by a group of persons by prior conspiracy;

b) in a significant amount, -

shall be punishable by imprisonment for a term of eight to fifteen years with or without a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years and with or without restriction of freedom for a term of up to two years.

4. Acts provided for in parts one, two or three of this article, committed:

a) an organized group;

b) by a person using his official position;

c) by a person who has reached the age of eighteen, in relation to a minor;

d) on a large scale, -

shall be punishable by imprisonment for a term of ten to twenty years, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to twenty years, and with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years or without it.

5. Acts provided for in parts one, two, three or four of this article, committed on an especially large scale, -

shall be punishable by imprisonment for a term of fifteen to twenty years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to twenty years or without it and with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years or without it or life imprisonment.

What is Article 228 of the Criminal Code of the Russian Federation about?

Article 228

provides punishment for the illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs, psychotropic substances or their analogues, as well as plants or their parts containing these substances (hereinafter referred to as narcotic drugs).

Article 228.1

(she was charged with Ivan Golunov) - for the production, sale or transfer of narcotic drugs.

Article 228.2

— for violating the rules of drug trafficking.

Article 228.3 and 228.4

- for the illegal acquisition, storage, transportation, production, sale or transfer of drug precursors (that is, substances used to manufacture drugs).

In addition to Article 228 with all its parts, penalties related to drug trafficking are contained in Articles 229–233 of the Criminal Code.

The Code of Administrative Offenses also provides for administrative penalties for drug-related crimes. In particular, illicit trafficking in narcotic and psychotropic substances (Article 6.8 of the Administrative Code), propaganda of narcotic drugs (6.13), consumption in public places (20.20).

Illegal sale of drugs: concept and corpus delicti

Criminal and administrative liability for drugs is provided for by the relevant articles of the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. Here are some of them that are relevant to the topic of this review:

• Art. 228 of the Criminal Code of the Russian Federation (purchase, storage, transportation, manufacture of drugs);
• Art. 228.1 of the Criminal Code of the Russian Federation (production, sale of narcotic substances, transfer and sale of drugs);
• Art. 6.8 Code of Administrative Offenses of the Russian Federation (drug trafficking);
• Art. 6.9 (drug consumption without a doctor’s prescription).

It should be borne in mind that there is not always liability for the production, sale or consumption of drugs. The corpus delicti for such acts occurs under certain circumstances. Thus, criminal liability for the sale of drugs implies that such an action was carried out in violation of the law. According to paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14, the sale of narcotic drugs is understood as the illegal activity of a person in their paid or gratuitous sale to another person, regardless of the method of such sale.

What punishment does violators face?

For the acquisition, storage, production of narcotic drugs without the purpose of sale (Article 228)

punishment is provided (depending on the size of the seized substances):

*in this case, imprisonment is not mandatory, but only one of the possible punishments

For illegal production and sale of drugs (Article 228.1)

The Criminal Code of the Russian Federation provides for imprisonment for up to 20 years, in exceptional cases up to life imprisonment.

Additionally, it is possible to impose a fine of up to 1 million rubles, restriction of freedom, deprivation of the right to hold certain positions or engage in certain activities.

The Criminal Code provides for exemption from criminal liability for the illegal acquisition, storage, transportation, manufacture and processing of drugs or precursors for persons who voluntarily surrendered these substances and actively contributed to the disclosure or suppression of crimes related to drug trafficking, the exposure of those who committed them, and the detection property obtained by criminal means. Illegal production and sale of narcotic substances or precursors (Articles 228.1 and 228.4) do not provide for exemption from liability.

Responsibility for drug use

For the illegal acquisition of narcotic drugs (attempted acquisition) without the purpose of sale, criminal liability has been established under Part 1 of Art. 228 of the Criminal Code of the Russian Federation, as already mentioned above. In addition, the Code of Administrative Offenses provides for administrative liability for the use of narcotic substances without a doctor’s prescription (Article 6.9):

• for citizens of the Russian Federation, a fine from 4 thousand to 5 thousand rubles or arrest for up to 15 days (part 1);
• for foreign citizens and stateless persons the punishment is the same plus administrative expulsion from the Russian Federation (Part 2).

There is no separate punishment for using drugs in a public place. Violators are held accountable for this offense, as well as the responsibility of minors for drug use, on a general basis under Art. 6.9 Code of Administrative Offenses of the Russian Federation.

In addition, administrative liability is also provided for illegal drug trafficking without the purpose of sale (Article 6.8 of the Code of Administrative Offenses of the Russian Federation). The punishment is the same as under Art. 6.9 Code of Administrative Offenses of the Russian Federation.

How is the size of drugs determined?

Significant, large and especially large sizes of narcotic substances and plants containing narcotic substances are approved by government decree No. 1002 of October 1, 2012.

For example, N-methylephedron and its derivatives, the sale of which Ivan Golunov was accused of selling, in large quantities corresponds to more than 1 g of the substance.

Determining the size of illegal drugs in criminal prosecution

(grams over)

According to a study by the Institute for Law Enforcement Problems, “Map of Drug Crimes in the Russian Federation,” as of 2014, the most frequently seized drugs by law enforcement are cannabinoids, heroin and amphetamines.

You can view the map here.

Preparation and attempted sale of narcotic drugs

Separately, it should be said about the preparation and attempted sale of narcotic drugs.

One of the most common situations is the detention of a person with a large volume of packaged drugs, as a result of which he is charged with preparation for sale.

If a person is detained after he has made a bookmark and this has been documented, then he is charged with attempted trafficking.

The most common narcotic substances in the Moscow region, as well as their significant, large and especially large sizes, can be seen in the table:

Practice shows that these drugs are most often found in Moscow and the Moscow region.

Significant, large and especially large amounts of narcotic drugs are approved by the Government of the Russian Federation.

The sizes of other narcotic substances can be found in the Resolution:

Decree of the Government of the Russian Federation dated October 1, 2012 N 1002 (as amended on July 29, 2020)

View document

The weight of the drug and, accordingly, its assignment to a certain size is calculated based on the total mass of the detected substance, and not the mass of the pure drug.

If the amount of a narcotic drug does not reach a significant amount, then in the event of its illegal acquisition and storage without the purpose of sale (Article 228 of the Criminal Code of the Russian Federation), instead of criminal liability, administrative liability occurs under Art. 6.8 of the Code of Administrative Offenses of the Russian Federation, which will entail an administrative fine.

If we are talking about the sale of drugs, then this rule will not work. As mentioned above, in this case the law does not establish a minimum amount of a narcotic substance, therefore the sale of even a small amount of the drug will entail criminal liability.

What do judicial statistics say?

According to the Judicial Department of the Supreme Court of the Russian Federation, every seventh sentence in the Russian Federation is passed under Article 228

. Thus, in 2022, 658.3 thousand people were convicted under all elements of the Criminal Code of the Russian Federation, of which Article 228 with all its parts accounted for 13.4% of all sentences. For comparison: a year earlier the share was 14.3% (total number of convicts - 697 thousand), in 2014 - 15.2% (out of 719.3 thousand). If we take all drug-related charges, then a quarter of all prisoners are imprisoned under them.

The most widespread is Article 228 (acquisition and possession without the purpose of distribution), which in 2022 accounted for 79% of all sentences (69.6 thousand). Drug sales (228.1) account for 21% of convictions.

The majority of those convicted are young people (age group from 18 to 29 years).

The most common sentence for drug-related crimes is imprisonment for 3-5 years. At the same time, only 0.3% of criminal cases end in release from punishment.

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Art. 72.1 of the Criminal Code of the Russian Federation gives the court the opportunity to oblige the convicted person to undergo drug addiction treatment (if the main punishment is not related to imprisonment). In Art. 82.1 provides for the opportunity for a person sentenced to a real term to voluntarily undergo treatment for drug addiction with a deferred sentence.

Arbitrage practice

According to experts, approximately a quarter of all crimes are committed under “narcotic” offenses. The vast majority of drug crimes fall under Art. 228 and 228.1 of the Criminal Code of the Russian Federation, which we discussed in this review, as well as under Art. 232 (“Organization or maintenance of brothels”). The main punishment imposed for these crimes is imprisonment, including probation, which accounts for approximately 4/5 of the sentences; the rest are fines, compulsory labor and other types of punishment.

About 15% of those convicted on drug charges are previously convicted, the average age of the convicted is 30 years, 90% of them are men. About 60% do not have official employment. The most common drugs involved in criminal cases are cannabis, heroin, amphetamines and spice. According to Art. 228 and 228.1 of the Criminal Code of the Russian Federation, the main role is played by the mass of seized drugs, which determines the severity of the punishment for the defendants.

Feature of Art. 228 and 228.1 of the Criminal Code of the Russian Federation is that they are often used by law enforcement officers to fabricate fictitious crimes. The most high-profile example from the recent past is the case of Meduza investigative department correspondent Ivan Golunov, who was detained in June 2022 on suspicion of drug trafficking. The case was clearly falsified, and as a result of a widespread public campaign it was dropped for lack of evidence of Golunov’s guilt.

Features of law enforcement

The 2022 report by the Institute for Law Enforcement Problems, “Drug Crimes in Russia: Analysis of Judicial and Criminal Statistics,” notes that consumers in Russia are persecuted more often than distributors

. The authors identified “artificial distortion of the masses of seized drugs by law enforcement agencies.” “The quantities of marijuana and hashish most often seized from drug users are just sufficient to qualify the offense as a criminal offense, and these quantities do not significantly exceed the significant amount required to initiate a criminal case,” the report says.

Alexey Knorre, “Drug crimes in Russia: analysis of judicial and criminal statistics”

Alexey Knorre, “Drug crimes in Russia: analysis of judicial and criminal statistics”

Alexey Knorre, “Drug crimes in Russia: analysis of judicial and criminal statistics”

Researchers call a separate problem the fact that “law enforcement officers understand a drug not as a pure narcotic substance found in a mixture, but as the entire mixture.

A sociological view of drug crime statistics

According to Alexei Knorre, an expert at the Institute of Law Enforcement Problems of the European University, there are no official statistics on bringing law enforcement officers to justice for falsifying drug cases. However, content analysis of the media over the past 5 years has revealed approximately 500 cases in which a law enforcement officer was detained, arrested, or convicted of drug-related fraud.

READ / High-profile verdicts under Article 228 of the Criminal Code of the Russian Federation

November 23, 2010, during searches in the house of Taisiya Osipova,

found nine grams of heroin.
On December 29, 2011, the Zadneprovsky District Court of Smolensk sentenced her to 10 years in prison
(Part 3 of Article 228.1). On February 28, 2022, she was released on parole.

On January 29, 2013, Sergei Reznikov, a member of the territorial election commission of the Prospekt Vernadsky district from the Communist Party of the Russian Federation and a regular participant in protests, was detained in Moscow.

During the arrest, the police found several grams of cocaine on the communist, but he did not admit his guilt.
On March 6, 2022, the Nikulinsky District Court sentenced him to three years in prison
(Part 2 of Article 228). He was released on November 20, 2022 after the Ryazan Regional Court replaced the remaining sentence with a fine of 350 thousand rubles.

February 20, 2014 President of the “Assembly of Peoples of the Caucasus” Ruslan Kutaev

was taken into custody in the Chechen village of Gekhi on suspicion of illegal possession of three grams of heroin.
On July 7 of the same year, he was sentenced by the Urus-Martan City Court to four years in prison
(Part 2 of Article 228). He was released on December 20, 2017.

On April 15, 2016, journalist Zhalaudi Geriev was detained on the way to the Grozny airport.

He was accused of possessing and transporting 168 grams of marijuana.
On September 5 of the same year, the Shali City Court sentenced him to three years in prison
(Part 2 of Article 228). On April 30, 2022, he was released.

On January 9, 2022, in Chechnya, traffic police officers stopped the car of the head of the Grozny representative office of human rights activist Oyub Titiev.

A bag containing 180 grams of marijuana was found in his car.
The human rights activist himself did not admit his guilt, saying that the drugs were planted on him. On March 18, 2022, the Shali City Court of Chechnya sentenced him to four years in prison
(Part 2 of Article 228 of the Criminal Code of the Russian Federation). On June 10 of the same year he was released on parole.

international experience

Penalties for drug crimes vary greatly. Particularly in Singapore

one of the strictest laws on the planet.
It is illegal to possess, consume, produce, trade, regardless of quantity. Punishments - up to the death penalty. On the other side of the world are Denmark and the Netherlands
, where drug use is not criminalized at all.

IN THE USA

drug crimes are regulated by federal and state laws. In most states, it is not the use of drugs that is a criminal offense, but the possession of drugs. Sentences with a prison term are threatened for possession in large quantities and sale. For fiscal year 2022, the majority (95.6%) of those convicted of drug trafficking received prison sentences, according to the U.S. Sentencing Commission. The average period is 70 months (about 6 years). The average age of the offender at sentencing is 36 years. The most common drugs in the United States are methamphetamine and cocaine. Today, 45% of prisoners in American prisons are serving sentences for drug-related crimes.

Marina Bocharova, Artem Kosenok, Mikhail Malaev, Olga Shkurenko