Sale of drugs or assistance in their acquisition?

Reclassification of a case is a change from one crime to another, implying either a more lenient or more severe punishment. Retraining can be carried out by the investigator, and during the trial - by the prosecutor, the accused and his lawyer.

If you find yourself accused, then changing the classification of the crime is your chance to reduce your sentence. A motivated argument on why your crime needs to be reclassified is best prepared by a lawyer who has extensive experience in filing petitions for reclassification of crimes.

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What is the difference between selling drugs and facilitating drug trafficking?

Of course, an experienced drug dealer will always want to disguise himself as an innocent lamb who is holding drugs in his hands for the first time. But it was not there. The resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14 clearly defines that complicity is the transfer of narcotic drugs to another person without commercial purposes. In most cases, it involves purchasing drugs for another person.

An accomplice must be distinguished from a co-perpetrator of a crime. In addition, there are:

1. Assisting in the sale is a crime in which a citizen:

• does not take direct part in this act;
• assists the performer or co-executor;
• knows reliably about the criminal intentions of the performer (co-performer) and helps in their implementation.

• Assistance in purchasing:
• the intent of the crime may be absent;
• providing only one-time assistance in purchasing drugs;
• the purchase is made with the money of another person;
• it is possible to receive remuneration from the person to whom the drugs are purchased;
• The motives for mediation can be close family or friendly relations with a person, actions out of a mistaken sense of mutual assistance or duty.

All these grounds are taken into account by the court when a decision is made to reclassify sales as aiding. However, you need to understand that drug cartel members who are not directly involved in the sale of the “product” are recognized not as accomplices, but as co-performers, if their task was to support the activities of this organization.

Test purchase of drugs

Article 228.1 of the Criminal Code of the Russian Federation, the illegal distribution of drugs and psychotropic substances can be compared in severity to the murder of a person. And the punishment under the 4th and 5th parts of Article 228.1 of the Criminal Code of the Russian Federation ranges from 10 years in prison (more than for murder). And the state is further tightening penalties for drug sales. For example, the Supreme Court made a decision of the plenum that the sale of drugs is considered completed during the operational investigative activities “Test purchase”. That is, all over the world this is called provocation of a crime by the police. And here we consider this to be a completed drug trafficking operation. Of course, why investigate, why carry out operational activities, find out, look for distributors, they are difficult to find, there is a lot of work, so ordinary drug addicts or just occasionally using citizens under the beautiful name “Test purchase of drugs” are turned into distributors. To us, as drug lawyers, this situation seems so critical that we do not have words to describe all the violations that police officers, especially operatives of local departments, commit, complete lack of human rights, innocent people are accused of selling drugs. How many mothers, fathers of wives, are in a state that cannot be expressed in words when their loved one is accused of selling drugs. This is hell!

As a rule, traffickers, real traffickers-dealers, do not hand over the drug and do not take money from hand to hand. everything is done through an electronic payment system, via the Internet, cash, real drug sellers do not take drugs, and the drug itself is transferred by intermediaries through a system of hiding places and stashes on the street. They leave the drug somewhere on the street and tell the buyer where the drug is. It is difficult to find real sellers and intermediaries and solve drug crimes, so our police organize an operational investigative event called “Test Purchase”; the purchasers, as a rule, are people who know each other well and, as a rule, use drugs together and naturally trust each other . They catch such a drug addict and say: take part in the purchase or go to prison yourself. Like that!

What to do if you are accused of selling drugs during a test purchase?

There is only one legal way out here: to achieve a reclassification from drug sales to assistance in the acquisition. There is no other way out here! Selling drugs is such a serious crime that you have to get away from it by any means.

Qualifying features

The severity of the sentence depends on the qualifying characteristics, so it is important to determine them. First of all, law enforcement agencies pay attention to the size of the crime. It can be significant, large and especially large. Naturally, in the latter case, a more severe punishment awaits.

Also, the sentence may be made more severe by the fact that the crime was committed by a group of persons in conspiracy or by an organized group. It is taken into account whether the citizen used his official position to commit an illegal act. Also, the punishment becomes more severe in a situation where an adult helps a minor purchase drugs.

In court, other details relevant to the case will be taken into account. They will pay attention to the motives for which the citizen committed the criminal act. It is also important to determine how many times he was involved in the acquisition of illegal goods. Let us note that an attempt, that is, a crime not completed, will also be punished. We will consider what an accomplice may face for illegal actions.

Is it possible to avoid punishment

The Criminal Code describes a situation where a person can avoid criminal liability. This is possible if a citizen voluntarily surrenders drugs and admits to his crime. However, if this happens during arrest, then the accomplice will still be held accountable.

You can also avoid punishment if a person was misled and did not know that he was helping to purchase an illegal product. That is, he had no idea that he was committing criminal acts. However, such a fact will be quite difficult to prove, because the accomplices may deliberately say that they did not know anything. We can only advise not to participate in illegal schemes, even if you only want to help a loved one.

Checking the investigation. It will become more difficult to extend the arrest.

Kozlova, in this legislative formulation there are two points that should be understood. Firstly, the law says that the actions of other accomplices can be qualified as preparation or attempt, while the actions of an accomplice, instigator, organizer can never be recognized as the execution of a crime - this is the essence of distinguishing the actions of a performer who commits actions included to the objective side of the crime, and other accomplices who do not commit such actions.

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)

Attempted sale or assistance in acquisition

In cases where the transfer of a narcotic drug, psychotropic substance or their analogues, plants containing narcotic drugs or psychotropic substances, or parts thereof containing narcotic drugs or psychotropic substances is carried out during a test purchase carried out by representatives of law enforcement agencies in accordance with Federal Law dated August 12, 1995

N 144-FZ (with subsequent amendments) “On operational investigative activities”, the act should be qualified under Part 3 of Art. 30 and the corresponding part of Art. 228.1 of the Criminal Code of the Russian Federation, since in these cases there is a seizure of a narcotic drug, psychotropic substance or plant containing narcotic drugs or psychotropic substances or their precursors from illicit trafficking" <1.

1 ATP “ConsultantPlus”. Kozlova, in this legislative formulation there are two points that should be understood. Firstly, the law says that the actions of other accomplices can be qualified as preparation or attempt, while the actions of an accomplice, instigator, organizer can never be recognized as the execution of a crime - this is the essence of distinguishing the actions of a performer who commits actions included to the objective side of the crime, and other accomplices who do not commit such actions. Therefore, the actions of other accomplices can only act as preparation, but not as an attempt.

Secondly, the law clearly requires that the actions of other accomplices in the suppressed behavior of the perpetrator be classified as unfinished criminal activity.

Intermediation in sales (228.1) or in acquisition (228)?

Attention

D-heroin, but they did not specify the time and circumstances of the transfer of the drug. Given such data, the court's conclusions that D-you carried out fishing in the form of systematic drug sales are not supported by the evidence considered at the court hearing. The Presidium of the Sverdlovsk Regional Court re-qualified the actions of D.

from clauses “a”, “c”, part 3 of article 228.1 to part 5 of article 33 and part 1 of article 228

The Criminal Code of the Russian Federation found him guilty of complicity in the illegal acquisition of drugs6. Within the meaning of the law, the sale of narcotic drugs should be understood as any means of their paid or gratuitous transfer to a person to whom they do not belong. In this case, the intent must be aimed at distribution.

Responsibility for complicity in the acquisition of drugs

In accordance with Article 88 of the Criminal Code of the Russian Federation, for a person under 18 years of age who has committed a grave or special grave crime, the lower limit of punishment provided for in the article of the special part of the Code is reduced by ½. If the sale of drugs was carried out by a person under the age of criminal responsibility, then a decision is made to refuse to initiate criminal proceedings.

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At the same time, the minor is registered with the relevant department of law enforcement agencies.

Meanwhile, the transfer of drugs as part of a test purchase is an imaginary transaction for both the trafficker and the intermediary. The actions of the mediator do not lead to the result that he sought due to circumstances beyond his control.

In practice, the actions of such a person are often qualified as an attempt to sell narcotic drugs. In paragraph 13 of Resolution No. 14 of June 15, 2006 “On judicial practice in cases of crimes involving narcotic drugs, psychotropic, potent and toxic substances” (hereinafter Resolution No. 14), the Plenum of the RF Armed Forces makes a distinction between sales and intermediation in the sale or acquisition and recommends that the actions of the intermediary be qualified as complicity in one of these crimes, depending on whose interests (the seller or the acquirer) the intermediary acts.

A. Gorelik rightly noted that the Plenum of the RF Armed Forces did not explain what the indication “in whose interests” means. Since the intermediary assists both the seller and the buyer, interest is shown in the initiative1.