Court verdict under Part 5 of Art. 33 of the Criminal Code of the Russian Federation No. 1-97/2017 (1-889/2016;) | Types of accomplices in crime

ON THE ISSUE OF CO-PERFORMANCE AND COMPLIANCE IN THE SALE OR PURCHASE OF DRUGS

№14, 06.07.2018

Legal sciences

Bolgova Evgenia Alexandrovna

Key words: CO-CONTRACTOR; ACCOMPLICE; DRUGS; ACQUISITION; SALES; CO-EXECUTOR; ACCOMPLICE; DRUGS; PURCHASE; SALE.

Abstract: The article examines the recognition of a person as a co-principal or accomplice in the sale or acquisition of narcotic drugs, which is determined solely by the nature of the role performed.

The level of drug crime in Russia is still high[1]. Group drug crimes pose a particular danger. At the same time, despite the algorithms for qualifying such crimes proposed in the literature[2], the issue of distinguishing co-perpetrators from aiding and abetting in drug crimes remains relevant for law enforcement officials.

A co-principal and an accomplice are accomplices in a crime. Recognition of a person as a co-principal or accomplice in the sale or acquisition of narcotic drugs depends on the nature of the role he performs. P.F. Telnov o[3].

Co-executorship in the sale of drugs should be understood as the participation of a person together with other co-principals who act in accordance with the distribution of roles, and took concerted actions aimed at providing direct assistance to the contractor in the sale of narcotic drugs [4].

As stated in the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14 “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances” (as amended on May 16, 2017): in the case when a person transfers the acquirer of narcotic drugs, psychotropic substances or their analogues, plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, at the request (instruction) of another person to whom they belong, his actions should be qualified as co-execution in an illegal marketing of these products, substances, plants.

Complicity can only occur when a person does not directly participate in the commission of a crime together with the perpetrator, but at the same time he assists the perpetrator or co-perpetrator with certain of his actions, and another moment - the accomplice reliably knows about the criminal intentions of the perpetrator (co-perpetrator) and helped them in their implementation (Part 5 of Article 33 of the Criminal Code).

Establishing the fact that an accomplice is aware of the criminal intentions of the perpetrator (co-perpetrator) in conjunction with the commission of the above actions is essential for qualifying the person’s actions, since it indicates the presence or absence of the person’s intent to commit a crime. Proof of the fact that the accomplice was not aware of the criminal intentions of the perpetrator (co-perpetrator) indicates his lack of intent to commit a crime[5].

Finding P. guilty of selling heroin, the court stated in the verdict that P. illegally purchased drugs with his own money, transported them from one region to another using his own vehicle, and sold them to M., receiving money and part of the drugs from him for the service. However, there was an agreement between P. and M. to provide assistance in purchasing heroin. P. did not have a drug that he could give to M. immediately after the latter’s phone call, since he was only going to buy heroin for personal consumption. Under such circumstances, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation recognized that P.’s actions fall under the signs of complicity in the acquisition of narcotic drugs (Part 5, Article 33, Part 1, Article 228 of the Criminal Code of the Russian Federation). The fact that he bought heroin for M. with his own money does not in itself affect the qualification of his actions[6].

A person who wants to purchase narcotic drugs transfers money to another person with an offer to buy narcotic drugs, and does not indicate the source of acquisition, since for this he hires another person, as a rule, for a portion of the narcotic drugs or a monetary reward, or something else. In this case, the actions of the intermediary should be qualified as co-execution in the acquisition of narcotic drugs, since the actions of him and the customer are interdependent and interconnected - one has money, but he does not know where to buy narcotic drugs, the second has no money, but he knows where it is purchase.

An accomplice in the acquisition of narcotic drugs should be understood as a person who acquires a narcotic drug from a third party at the request and for the money of the acquirer, but does not take ownership of this narcotic substance (does not own it), transfers it to the acquirer, then this person is an accomplice in the acquisition of narcotic drugs. acquisition of a narcotic drug, and his actions must be qualified as complicity in the acquisition of a drug[7].

So, for example, from verdict No. 1-20/2016 1-422/2015 dated February 12, 2016 in case No. 1-20/2016 of the Zheleznodorozhny District Court of Penza, it follows that Logunov is accused of committing crimes under Part 5 of Art. . 33, part 3, article 30, paragraph “d”, part 4, art. 228.1 of the Criminal Code of the Russian Federation, part 5 of Art. 33, part 1 of article 30, paragraph “g”, part 4 of article 228.1 of the Criminal Code of the Russian Federation, helped Legaev in committing crimes, namely, in his car he took large stashes of narcotic drugs and handed them over to Legaev. This action is regarded as complicity[8].

To qualify complicity as an accomplice in the acquisition, it is important to prove that the person acted solely at the request of the acquirer of the drug, and for his money, while the intent covered precisely the acquisition of the drug from a third party for the acquirer, and not its sale. The actions of an accomplice in the acquisition of narcotic drugs are qualified under Part 5. Article 33, the corresponding part of Article 228 of the Criminal Code of the Russian Federation. Criminal liability arises not for the sale, but for complicity in the acquisition of narcotic drugs. At the same time, the punishment under Article 228 of the Criminal Code of the Russian Federation is much milder than under Art. 228.1 of the Criminal Code of the Russian Federation.

From all of the above, we can conclude that the main difference between a co-principal and an accomplice in cases of sale or acquisition of narcotic drugs is determined solely by the nature of the role he performs, that is:

1. Co-executor for sales:

- transfers (sells) narcotic drugs to the purchaser at the request (instruction) of the person to whom they belong; — repeated actions in the form of sale of narcotic drugs; - receives rewards for his actions; — there is a stable relationship between the other co-perpetrator(s), the organizer of the crime in the field of drug trafficking.

2. Co-executor upon acquisition:

- a person who wants to purchase narcotic drugs for a third party and for his money clearly knows from whom and how to purchase these drugs; — repeated actions to acquire narcotic drugs; - receives rewards for his actions; — there is a stable relationship between the other co-perpetrator(s), the organizer of the crime in the field of drug trafficking.

3. Sales assistant:

- the person does not directly participate in the commission of a crime together with the perpetrator; - a person assists the performer or co-performer by certain of his actions; - the person reliably knew about the criminal intentions of the performer (co-performer) and helped them in their implementation.

4. Assistance in acquisition:

— the intent of the crime may be absent; — providing one-time assistance in the acquisition of narcotic drugs; - acquires it not with his own money, but with the money of the person who asked to purchase it; - purchases in the place where he was indicated; — receives remuneration (part of the drugs, money, etc.) on behalf of whom it acquires; - providing mediation due to close family or friendly relations with a person who acquires narcotic affinity, acting out of a mistaken sense of mutual assistance or duty.

Line of defense:

During the investigation, the position of refusal to testify was chosen on the basis of Article 51 of the Constitution of the Russian Federation. In most cases, I am not a supporter of using the tactic of refusing to testify, since I believe that an active defense is the most effective. However, each case is individual and sometimes it is better to remain silent than to speak.

This was the case in this case, since until the end of the investigation and familiarization with all the materials of the criminal case, the defense could not be aware of the presence of specific evidence on the charges brought.

Bibliography

1. Tokmantsev D.V. The state of drug crime in the countries of the Customs Union: Belarus, Kazakhstan and Russia // Bulletin of the Siberian Legal Institute of the Federal Drug Control Service of Russia. 2014. No. 3. P. 39.
2. Tokmantsev D.V. Algorithm for Qualifying Drug Crimes // Bulletin of the Siberian Legal Institute of the Federal Drug Control Service of Russia. 2015. No. 1.
3. Telnov, P.F. Responsibility for complicity in a crime // M.: Legal literature, 1974. - 208 p.
4. Kovalev M.I. Complicity in crime. //- Ekaterinburg: Publishing house of UrGUA, 1999. - 204 p.
5. Shesler A.V. Prospects for improving criminal law norms on complicity in a crime // Lex russica. 2015. N 6
6. Assisting in the acquisition of narcotic drugs, article of the Criminal Code [Electronic resource] – Access mode: https://law-uradres.ru/posobnichestvo-v-priobretenii-nark-sredstv-statya-uk (access date 06/23/2018)
7. Tokmantsev D.V., Vinokurov V.N. New rules for qualifying the illegal acquisition and illegal sale of narcotic drugs // Criminal law. 2016. No. 1.
8. Verdict No. 1-20/2016 1-422/2015 of February 12, 2016 in case No. 1-20/2016 // Website judicial and regulatory acts [Electronic resource] – Access mode: https://sudact.ru/regular /doc/FCywtCDiAIWl (accessed June 17, 2018)

Familiarization with the case and choice of tactics:

After reviewing all the materials of the case, the tactic of partial admission of guilt was chosen for those episodes and facts that, in the opinion of the defense, were reliably confirmed by the evidence collected in the case.

The prosecution carried out quite a lot of work in the criminal case. The evidence base was accompanied by the results of lengthy operational investigative activities (OPI), including surveillance, wiretapping (WTP), video recordings, etc. All this was supported by confessions by the accused, including those recorded on video camera.

I think, for clarity, it is better to describe each episode of the accusation.

Summary of the case:

The court agreed with the defense's position. In episode No. 1, the court excluded the indication that the crime was committed as part of an “organized group.” In episode No. 2, the client was completely acquitted. For episode No. 3, punishment was imposed in accordance with the norms of the Criminal Code of the Russian Federation. The defendant was sentenced to imprisonment for a term of 10 years and 3 months for the totality of crimes; the punishment under another sentence was added to the specified punishment by partial addition, according to which the suspended sentence was revoked. The final punishment is imprisonment for a term of 10 years and 6 months.

Author – lawyer Mikhail Vladimirovich Spiridonov

This is where the interest will be for professional defenders.

The court accepted as evidence the closure of an online store through which, according to the prosecution, the defendant sold narcotic drugs, printouts of Internet pages (screenshots) from the site on which, according to the indictment, the forum of the defendant’s store was located.

Thus, from the indicated Internet pages it followed that by the time the incriminated attempt to sell a narcotic drug was committed, the defendant, registered on this site under a certain nickname, had ceased to conduct any activity several months before the commission of the crime; the store’s forum thread had actually ceased to exist.

This confirmed that the defendant had indeed ceased to carry out activities related to the sale of narcotic drugs, using the online store and the forum thread on which he had previously communicated about the commission of such acts.

By introducing the indicated printouts of Internet pages (screenshots), the defense referred to the position of the Supreme Court of the Russian Federation, expressed in the Resolution of the Plenum of April 23, 2019 No. 10, according to which admissible evidence is, including those made and certified by persons participating in the case, printouts of materials posted in the information and telecommunications network (screenshot), indicating the address of the Internet page from which the printout was made, as well as the exact time of its receipt.

Of course, these printouts of Internet pages were not enough. The defense's position was confirmed by a body of other evidence indicating the defendant's innocence of this crime.

The materials of the criminal case contained a hidden video recording that was made by police officers during the acceptance of a confession from the defendant. In this video, the defendant explained to the police about the closure of the store. This video recording was made a short period of time after the arrest. Other defendants, during the recording of their explanations on video, gave similar explanations.

Episode No. 1 (clause “a”, “d”, part 4 of article 228.1 of the Criminal Code of the Russian Federation).

In this episode, my client was accused of creating an organized group consisting of three or more people who were engaged in the sale of narcotic drugs via the Internet.

According to the prosecution, one day the defendant, with the help of two accomplices, sold a synthetic drug through an online store to a buyer as part of an organized group. In this case, the narcotic drug was transferred through the so-called “stash cache”.

This narcotic drug was purchased as part of the “Test Purchase” operational procedure, that is, police officers, checking information about my client’s involvement in the sale of narcotic drugs, purchased the narcotic drug through an online store, made payment for it and picked it up at a pre-agreed location.

Defense position:

The line of defense in this episode was that the defendant denied involvement in the attempted sale of narcotic drugs in this episode.

The defense motivated its position by the fact that by the time the crime was committed, according to the defendant’s testimony, he had completed the specified activity and deleted the website through which, according to the prosecution, he was selling narcotic drugs.

Accordingly, he could not have committed the act that he was charged with (that is, the act was committed on April 15, and according to the defendant’s testimony, he finished engaging in the specified activity in March).

However, this still had to be proven to the defense.

Episode No. 2 (Part 3, Article 30, Clause “a”, Part 4, Article 228.1 of the Criminal Code of the Russian Federation).

This episode was of greatest interest to the defense. The fact is that, according to the defense, this episode had nothing to do with the defendant at all.

The defendant was accused of having, together with two accomplices, made a stash of plant-derived drugs in a garage cooperative.

At this moment, the police officers were conducting surveillance on the defendants. The police officers explained that they were watching the defendants and saw them build a hiding place behind one of the garages. The police decided to organize surveillance of this hiding place. After some time, a man approached the indicated cache-bookmark and took it away, after which he was detained by the police.

The defense was interested in the testimony of this man. He explained that he decided to go behind the garage to relieve himself. He was a person who used drugs, saw a package that looked like a stash of drugs, and decided to take it for himself. This is how he turned out to be an “accidental acquirer” of a cache of narcotic drugs allegedly made by the defendants.