Article 200.2 of the Criminal Code of the Russian Federation. Smuggling of alcoholic beverages and (or) tobacco products (new edition with comments)

1. Illegal movement across the customs border of the Customs Union of alcoholic beverages and (or) tobacco products in large quantities -

shall be punishable by a fine in the amount of three hundred thousand to one million rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or by imprisonment for the same term.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) by an official using his official position, -

shall be punishable by imprisonment for a term of three to seven years with or without 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 three years.

3. Acts provided for in parts one or two of this article, committed by an organized group, -

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

Notes. 1. The acts provided for in this article are recognized as committed on a large scale if the cost of alcoholic beverages and (or) tobacco products exceeds two hundred and fifty thousand rubles.

2. When calculating the amount of the cost of illegally transported alcoholic products and (or) tobacco products, from the entire cost of illegally transported alcoholic products and (or) tobacco products, that part of the cost of these goods that is permitted by the customs legislation of the Customs Union to be moved without declaration and (or) shall be excluded. ) was declared.

Types and methods of smuggling

In order to illegally cross the border and transport prohibited cargo, smugglers are constantly coming up with new schemes. In 2016, special craftsmen simply amazed customs officials, as they found very unpredictable options for the illegal transportation of tobacco products. Among them:

• inside the balls;
• between layers of cookies or waffles;
• in transported cars and other equipment;
• in yarn;
• in mannequins;
• in wood, building materials.

There are also cases of attempts to illegally transport cigarettes using children. The packs were attached to the legs using tape. Therefore, the forces of the customs service in 2022 and in the future will be aimed at identifying such cases.

Confiscation during smuggling

Under such circumstances, the actions of the person who committed smuggling constitute a customs offense, as well as Art. 226.1 of the Criminal Code of the Russian Federation, which provides for liability for the illegal movement of goods and valuables on a large scale across the customs border of the Customs Union.

There are also often cases when individuals, transporting small quantities of cigarettes for personal use, forget to declare them or unintentionally make mistakes when declaring them. At the same time, such actions are often also interpreted by the customs service as smuggling and can lead to both confiscation of tobacco products and punishment.

In such situations, there is a need to contact a lawyer who is ready to provide qualified assistance to individuals who have problems at customs. By contacting a customs lawyer, Sergei Mikhailovich Kshnyaykin, you will receive a solution to problems of any complexity, including the case when your goods are confiscated and recognized as contraband.

What punishment awaits the smuggler?

Since 2015, the preventive measure has been determined under Article 200.2, which provides for various degrees of punishment. They depend on several factors. When transporting products in particularly large quantities, the cost of which is more than 250,000 rubles, punishment may be in the form of a fine (from 3 thousand to 1 million rubles or seizure of income for 1-3 years), imprisonment for up to 5 years, forced labor for the same period.

If the crime is committed by a group, the punishment can be from 3 to 12 years in prison. Sometimes such a measure is supplemented by a fine of 1 million rubles.

Administrative responsibility for cigarette smuggling

Administrative punishment for illegal transportation of tobacco products is imposed in the following cases

1. Goods that are subject to mandatory declaration in accordance with customs legislation are transported without being indicated in the declaration.
2. When filling out the declaration, the product code is incorrectly indicated, on the basis of which the value of the item being declared and the payments due are determined.
3. The transportation is accompanied by incorrect or invalid documents in order to deceive responsible persons and illegally move cigarettes across the border.

Administrative liability is determined by a fine, the amount of which depends on the value of the shipment of cigarettes being transported, as well as confiscation of the contraband item. If the illegal transportation of tobacco products causes serious economic damage to the state, then criminal punishment is imposed in accordance with the law.

What does the government do to protect the market?

Last September, Russian Finance Minister Anton Siluanov noted that the bulk of the supply of illegal cigarettes comes from the EAEU, primarily from Belarus and Armenia. Despite the recognition of the problem with the uncontrolled supply of contraband from the EAEU, no active steps are being taken at the international level to solve it. The Russian Ministry of Finance has prepared proposals to resolve the issue of export supplies of alcohol and tobacco products on the territory of the EAEU and sent them for consideration to the Eurasian Economic Commission, but the document has not yet been discussed. It should be noted that the proposals prepared by the Ministry of Finance do not solve the problem of uncontrolled movement of tobacco products between the countries of the union, so additional solutions are required.

At the same time, it is obvious: when the state has political will, decisions to introduce special measures are made quickly. This happened, in particular, with special transit regimes for the transportation of sanctioned products.

Today, Article 142 of the EAEU Code allows each country to make its own decisions related to the inspection of transit cargo sent through the territory of partner countries. And since the production of illegal tobacco for import to neighboring countries of the union has become one of the serious sources of income, no one except Russia is yet interested in introducing additional control procedures.

Meanwhile, any EAEU country has the right to demand interim measures for the safe transit of goods through its territory. Russia also has this right. This could be a mandatory procedure for customs escort of transit cargo, the use of technical monitoring means, the introduction of security payments, and other measures that have long been used for transit cargo from non-CIS countries.

The scourge of the Russian budget

The large-scale turnover of illegal tobacco annually leads to a loss of revenue for the Russian state budget. According to expert estimates, at the end of 2022 the treasury lost more than 70 billion rubles, and at the end of 2019 - over 100 billion rubles. In 2022, the amount of losses decreased due to a decrease in the share of illegal tobacco products on the Russian market, due to the introduction of epidemiological restrictions in the Russian Federation in the form of border closures and restrictions on the work of retail enterprises, as well as as a result of increased activity by law enforcement and customs authorities. However, the figure generally remained at the same level: the budget received less than 85 billion rubles. Legitimate businesses are also suffering damage. Small retail loses 10 billion rubles annually due to a decrease in turnover caused by unfair competition from illegal traders. Large networks do not disclose the volume of losses, but these are definitely very large amounts.

Illegal cigarettes are counterfeit and unlabeled products produced outside of Russia, which are smuggled and sold illegally without paying excise taxes and taxes. The share of the shadow segment in the Russian market on average at the end of 2020 is estimated at 11%. The key advantage of illegal cigarettes is their cost, which is usually two to three times lower than that of a marked pack, that is, 50–70 rubles versus 140 rubles per pack in 2022. At the end of 2022, as follows from a study by the analytical agency Nielsen, about 85% of all illegal tobacco products in Russia were imported from outside our country. At the same time, the main source of illegal cigarettes is the EAEU countries. Tobacco products coming from the territory of these countries and sold without paying excise duty and other taxes to the Russian budget amounted to 64.3% of the total volume of illegal tobacco products on the Russian market. It is noteworthy that the absolute leadership among illegal cigarettes in Russia belongs to Belarusian products, the share of which in 2022 exceeded 50% of the entire illegal market.

The opportunity to receive huge income for Belarusian producers is provided by the extremely low excise tax burden within the country. Unlike Russia, Belarus is in no hurry to increase excise tax rates on the domestic market: instead of the planned increase of 25% in 2022, they will increase by only 15%, and in two stages by 10% from January 1 and by another 5% only from the second half of 2022 of the year. As a result, Belarusian manufacturers are actively exploiting the advantages of the single customs space. The country does not fight illegal supplies of industrial products to the territory of other EAEU member countries. Although this approach clearly contradicts the agreements within the union.

Features of legal defense

The main features of a lawyer’s defense strategy directly follow from the difficulties listed above. You can list the stages of a defense lawyer’s work during the pre-trial investigation and directly at the court hearing.

1. A lawyer working on the basis of a signed agreement examines the specific situation and gives the necessary advice. There may be several of them, since the tactics of the accused’s behavior change depending on newly discovered circumstances.
2. For effective defense, it is necessary to give a legal assessment of the actions of the accused and the actions of customs officials. It may well turn out that the accusation was not entirely legal, that is, the actions of the accused are classified far from the article under which he is accused.
3. The lawyer assesses the seriousness of the current situation not only by the wording of the charge. He requests materials that the investigation has. Based on what has been learned, the legal assistant predicts the development of events, sets specific goals and begins to develop a defense strategy.
4. Client protection is built in one of several directions. The lawyer's efforts are aimed at:

• Termination of criminal prosecution due to the absence of a crime in the actions of the defendant;
• Suppression of illegal actions on the part of law enforcement officials;
• An acquittal of his client based on the evidence of innocence presented;
• Reduction of a sentence in the presence of mitigating circumstances or imposition of a non-custodial sentence.

1. It is not always the case that a criminal case ends in the court of first instance. If the defendant does not agree with the decision, he can file an appeal, which is drawn up by a lawyer, and then participates in the appellate court.

“Interrupted transit” scenario

Cigarettes are produced “for export” in an EAEU country, for example, in Belarus. The packs are not marked with Russian excise stamps - after all, according to the documents, the cigarettes will go to another country. For example, to Afghanistan, in transit through Russian territory.

Trucks loaded with “transit” cigarettes and the necessary documents enter Russia and successfully disappear from the sight of the authorities. The cigarettes are unloaded, stored, and then transported and sold illegally in Russian cities.

The “customs transit” procedure in the recipient country or at the external border of the EAEU is completed fictitiously. The documents are formally closed, and the vehicles either do not arrive in the destination country or arrive empty.

Judicial practice: sentences and punishment under Art. 200.2 of the Criminal Code of the Russian Federation

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