Crimes in the field of illicit trafficking in drugs and psychotropic substances, enshrined in Article 228 of the Criminal Code of the Russian Federation , Art. 228.1 of the Criminal Code of the Russian Federation and some related articles of criminal law are very common in Russia. It is no coincidence that the label “people's article” is firmly attached to these articles of the Criminal Code of the Russian Federation. Thus, according to official data from the Ministry of Internal Affairs , in 2022 alone, more than 194 thousand crimes were registered in our country, provided for in Articles 228-228.4 of the Criminal Code of the Russian Federation.
The simple corpus delicti, enshrined in Part 1 of Article 228 of the Criminal Code of the Russian Federation, has the following composition:
- Objective side: illegal acquisition, storage, transportation, creation, processing of narcotic and psychotropic substances, their analogues, as well as plants and parts of plants containing prohibited elements, if these acts were committed in a significant amount. Data on the significant amount of drugs are contained in the Decree of the Government of the Russian Federation of October 1, 2012 No. 1002 (for each type of drug, the indicators of a significant amount will be different). Specific lists of prohibited substances and elements are contained in Government Decree No. 681 of June 30, 1998 . Unlike Art. 228.1 of the Criminal Code of the Russian Federation, under Art. 228 liability occurs only if narcotic drugs were discovered in a significant amount.
- Object: public health.
- Subject: a mentally sane person who has reached the age of 16 years.
- Subjective side: intent is only direct, that is, the guilty person is aware of the danger and illegality of his actions, but carries them out anyway. In this case, there is no sales purpose - the person performs these actions for himself.
Art. 228 of the Criminal Code of the Russian Federation also contains qualified compounds characterized by an increased danger to society. Thus, criminal penalties are increased if drug trafficking was carried out on a large or especially large scale.
The Criminal Code of the Russian Federation contains several articles similar in composition to Article 228 of the Criminal Code of the Russian Federation. So, this is:
- Article 228.1 of the Criminal Code of the Russian Federation – illegal production, sale, transfer of drugs and psychotropic elements, as well as plants containing prohibited substances. This crime is more dangerous than the act in question, since in this case the perpetrator involves other citizens in drug trafficking. For the very fact of bringing to criminal liability for the sale of narcotic drugs and psychotropic substances, the size of the narcotic drugs and psychotropic substances does not matter and serves only to qualify the actions of the perpetrator under one or another part of the article of the law in question; the larger the size, the more severe the punishment.
- Article 228.2 of the Criminal Code of the Russian Federation - violation of the rules for the circulation of drugs and psychotropic substances. The crime is characterized by the fact that its subject can only be an individual whose official duties include compliance with the rules for the circulation of hazardous substances (for example, a laboratory assistant, a pharmacist, a doctor, etc.). The perpetrator can break the rule either intentionally or through negligence.
- Article 228.3 of the Criminal Code of the Russian Federation – illegal acquisition, storage, transportation of precursors of drugs or psychotropic substances. Precursors are substances involved in the process of creating drugs.
- Article 228.4 of the Criminal Code of the Russian Federation – illegal production, sale, transfer of precursors of drugs and psychotropic substances.
Article 6.8 of the Code of Administrative Offenses of the Russian Federation also provides for administrative liability for drug trafficking Persons who are found in possession of narcotic drugs or psychotropic substances are convicted of their illegal acquisition, storage, transportation, if the weight of prohibited drugs is less than the significant weight defined in Government Decree No. 1002. Also Art. 6.9 of the Code of Administrative Offenses of the Russian Federation provides for liability for the consumption of narcotic drugs without a doctor’s prescription. Punishments provided for administrative offenses in the field of drug trafficking are a fine of 4 to 5 thousand rubles or administrative arrest for up to 15 days, and in relation to foreign citizens - deportation from the Russian Federation.”
Part 2
Article 228, part 2 of the Criminal Code of the Russian Federation is completely different in meaning from the same subsections of the rest of the Criminal Code.
As noted earlier, only the quantity of narcotic drugs matters for qualification under this article. The second part provides for a crime committed on a large scale. Thus, the acquisition, transportation and other actions are carried out by the criminal in relation to drugs, the mass of which is several times greater than the amount of the substance in the first part.
Accordingly, Article 228, Part 2 of the Criminal Code of the Russian Federation does not contain any indication of who exactly commits the crime. As a rule, the culprits are those who do this for themselves, not for sale or any other form of distribution.
It is important to understand here that criminal liability arises even if a drug with a narcotic effect is found in an amount necessary for use by only one person in the amount of one or several doses of the substance.
How the police work under Art. 228 of the Criminal Code of the Russian Federation
Almost all trafficking in drugs and illegal substances has gone online. This means that the purchase occurs anonymously, through the TOR network and online platforms like HYDRA, telegram channels and conditionally looks like this: the drug seller makes a bookmark through a pawnbroker, the drug user pays for the purchase and picks up the bookmark in a certain place, the location of the bookmark is reported after payment .
In each district of each city, police officers or operational officers know certain “convenient” places for bookmarks and, accordingly, can wait in advance at the exit, for example, from some place, in order to try to detain the person who took the bookmark (storage), or by observing in advance terrain, try to detain the pawnbroker, who only intends to pawn (preparation for sale) or detains immediately after (attempted sale).
Taking this into account, as well as anonymity online (and even then not always!), the only way for the police in these cases is to:
- A banal check of documents of a person who, for no apparent reason, is, for example, alone in a forest park in the evening. If a person is nervous, behaves suspiciously, or is under the influence of drugs, then the procedure of asking “does he have anything prohibited on him” begins, and if the person does not pass this check, then the search procedure begins and, depending on the presence or absence of drugs on oneself, in large quantities packaged or in small quantities for one-time consumption, in the discovery or absence of stash - a charge is brought against either storage or sale.
- Surveillance of a person who, on the basis of indirect information (complaints from neighbors, grandmothers or “particularly” attentive persons, informants (comrades of the person) is engaged in the distribution of drugs, monitoring him until the moment of planting and detaining him immediately after.
In particularly difficult cases, when the police’s goal is not simply to detain the pawnbroker or in storage, but to uncover a group of people, among whom some are engaged in wholesale purchasing, others in distribution through the treasure master and management of the pawnbrokers, more serious means are used in the form of: wiretapping of telephone conversations, recording of correspondence via instant messengers, introduction of agents. The charge for identified and documented activities of this kind usually also consists of Art. 210 of the Criminal Code of the Russian Federation - the creation of an OPC (organized criminal community) and the threatened punishment is even more severe.
Part 1. Acquisition
It is necessary to pay attention to the very wording of the crime, which is contained in Article 228, Part 1 of the Criminal Code of the Russian Federation. According to the code, it is prohibited to purchase, store, transport, manufacture and process drugs.
By acquisition, the legislator means not only the transfer of substances for money, but also in other ways: free of charge, in exchange for a service or information. The gratuitousness of the transaction in this case does not exempt from liability, since the determining factor is the narcotic drug (in any form), and not finances. Even if a citizen finds drugs, this is considered one of the types of acquisition.
Voluntary surrender
Article 228 contains not only sanctions for drug trafficking, but also some explanations. In particular, the possibility of exemption from liability is noted if a citizen voluntarily donates the available drugs. In the event that a person was detained and one of the means specified in the disposition of the article was confiscated, this is not considered a voluntary surrender.
If a citizen was heading to law enforcement agencies with drugs to be handed over and on the way he was stopped by police officers to check his documents, it is necessary to voice his intentions. This must be done before a possible arrest for any reason, otherwise during a search (if it is suddenly carried out), the drugs found will be the basis for starting a criminal investigation. In this case, it is almost impossible to prove that voluntary surrender was planned.
Letter of the law
There are several articles in the Criminal Code related to the unauthorized use of drugs. Among them is Article 228 of the Criminal Code of the Russian Federation. According to this provision, liability arises in the manufacture, acquisition or storage of narcotic drugs themselves, as well as their precursors and analogues or plants that contain these same substances. Moreover, the person performing these actions is not a medical institution or a pharmaceutical plant.
For correct qualification, only the number of drugs matters. Unlike similar provisions, which also refer to narcotic drugs, Article 228 of the Criminal Code of the Russian Federation does not affect the sale of substances, which is carried out by unauthorized persons.
Depending on the amount of funds found and seized, the guilty person is punished. There are significant, large and particularly large quantities of drugs. It should be noted that Article 228 of the Criminal Code of the Russian Federation, an amount less than significant is not considered a crime. However, for many drugs or chemical compounds, the mass that is not prohibited by law is so small that we can talk about a complete ban on the circulation of these substances.
Differences from other norms
The next provision in the list in the code contains more positions than Article 228. Part 4 of the Criminal Code of the Russian Federation in Article 228.1 also provides for punishment for large-scale drug trafficking. However, here we are not talking about personal use, but about sale (or other forms of distribution).
In addition, the subjects of the crime that are not designated by Article 228, Part 4 of the Criminal Code of the Russian Federation, Article 228.1 are indicated in the following composition:
— 18-year-old persons in relation to minors;
- citizens holding office;
- organized group.
Part 3
A particularly large amount of substances that are the subject of a crime, which is provided for in Article 228 of the Criminal Code of the Russian Federation, implies the presence of a large amount of drugs in relation to the minimum punishable amount. For each psychotropic drug or drug with intoxicating properties, there is a threshold amount, that is, there is no single measure. For example, for anasha, a particularly large size would be 10 thousand grams of product volume, and a significant size would be only 2 grams. Illegal hemp trafficking in Russia is considered particularly large in relation to the product volume of 100 thousand grams, and large – only 100 grams.
Part 1. Storage
If illegally obtained substances that are drugs with intoxicating or psychotropic effects are simply lying in a certain place and no action is taken with them, this is considered storage.
Article 228, Part 1 of the Criminal Code of the Russian Federation provides for situations when drugs, which should be kept in specially designated places under special conditions, are located with a private person. As a rule, the perpetrators do not have the rights and powers to retain substances prohibited from free circulation on the territory of Russia.
How to protect yourself on charges under Art. 228
The main recommendation that a drug lawyer in Moscow or any other city can give during a consultation is not to use drugs and remember that drugs are evil.
However, a person involved in this area from one side or another needs to know the following (and remember that an urgent visit to a lawyer can mitigate the situation):
- Frequent communication among people who regularly use drugs will sooner or later attract the attention of the police and cause a desire to imprison or receive a reward, i.e. bribe. It is not a fact that any of these individuals are not cooperating with the police. It is not a fact that, having been caught, in order to remain free, this person will not betray his friends or will do even worse (provoke a sale by asking to sell).
- Any transfer of any amount of a drug for no reason, at cost, to a friend or comrade, not to mention sale, is sale; see above, it is unknown what happened to this “comrade” before and why he actually takes the drug.
- The amount in weight of a specific drug, when exceeded, it is criminal liability for possession, and not an administrative fine. Obviously, a person who keeps a large amount of a substance on him runs the risk of being accused of at least possession, or at most preparation for sale.
- A person who has a large amount of the drug on him (more than enough for a single dose of use), and even in packaged form, will most likely be accused of preparing for sale. The job of the “mortgagor” is sales. The presence of photographs of bookmarked places on the phone, even without a description, or the fact that these photographs were sent somewhere, is unlikely to help in proving that a person found these drugs.
- Anonymous chat in a telegram or other messengers, online conversations do not guarantee security, since at the other end of the line this can be documented and recorded jointly by the police and the collaborating person.
- WhatsApp correspondence about flour, sugar, dill are the same evidence of the accusation.
- Walking in a forest belt, park, or yard without a specific goal, alone or in pairs, will most likely raise questions from the police and a check of documents with certain questions and monitoring the reaction; entering by taxi, car sharing and exiting after a short time will attract the same attention.
- The weight of the drug and, accordingly, the assignment to a certain size and article is calculated based on the total mass of the detected substance, and not the mass of the pure drug; sad practice in Russian reality, but it is so.
- The police can detain the pawnbroker, he will report the locations of the stashes, and officers will be on duty at these places, waiting for the next person who can be detained on possession charges.
- Using drugs outside the home will obviously lead to serious consequences.
Part 1. Recycling
Often, cunning drug addicts collect the necessary remedy in parts, mixing certain ingredients. In this case, in order to separate processing from manufacturing, it should be understood that the components themselves are already narcotic drugs, but for certain reasons are not used by specific individuals. To obtain the desired effect, drug users have to carry out special processing of substances, which not only does not reduce the properties, but also greatly increases the psychotropic effect.
