Illegal trafficking in precious metals, stones or pearls

In the case when there is a sale of precious minerals within the country or abroad, which is not controlled, this undermines the stability of the market, leads to the fact that the metals depreciate, and currency rates fluctuate. To prevent such a situation from happening, the extraction and sale of natural materials is the responsibility of state authorities. To conduct such activities you will need to obtain a special permit or license. An article of the Criminal Code of the Russian Federation is provided for illegal trafficking of precious metals.

Exceptions

Some states of precious metals will not be considered as the subject of Article 191 of the Criminal Code of the Russian Federation. These include:

1. Jewelry. They are understood as objects and various kinds of decorations that are made using artistic processing in its various manifestations. Precious metals are processed in combination with semi-precious, precious or counterfeit stones and other natural materials. Or they can be made entirely of precious metal;
2. Household products made from precious metals. This means that such an item does not belong to the type of personal jewelry; items used in everyday life are used. This could be dishes, weapons, religious objects, etc.;
3. Objects of art, antiquities or antiques, in the manufacture of which precious metals or stones were used;
4. Scrap jewelry and other household items. These may be unusable, broken jewelry and items that can be recycled into other products;
5. Gold leaf. These are thin films of gold that are used for decorative purposes;
6. Discs for dental prostheses;
7. State awards made using precious stones and metals;
8. Collectible coins.

Important! In all of these cases, it is not taken into account how objects and decorations are made; it may also be a handicraft method. In addition, it does not matter whether the stamp is affixed or not. Clauses 3, 5, 7, 8 are an exception only for one-time transactions.

Specific qualifications

The specificity of the qualification of this type of act is whether this or that operation is permissible.
It is determined by the state in which precious metals and stones are located. As an example, we can consider the situation with a cut diamond that has a commercial form. It can be transferred, transported and perform other various operations only if there is a document that confirms the purchase of the stone. With the help of a document, you can prove that the stone was not misappropriated.

If we talk about the native brother of this stone, which does not have polished edges, then the performance of any actions with it by a subject who does not have a license is considered a crime.

A similar situation occurs when performing operations with stones that are not processed. Even industries that have official permission to operate with these stones and metals cannot implement it if the metals are required to replenish the budget’s gold reserves.

If even a small amount of gold dust or nuggets is in the possession of a private person, then this is fraught with criminal liability for him. This is due to the fact that an individual cannot act as a subject who is allowed to circulate stones and metals classified as precious.

Storage and theft

According to Instruction No. 68, precious stones and metals are stored in premises that meet the requirements prescribed by law regarding technical strength and equipment with fire and security alarms.
Important! The premises and cabinets where these items are stored must be sealed, sealed, locked and handed over to security. Only responsible persons or a commission will be able to open them, with permission obtained from management. Taking into account the specificity of the criminal act under consideration, it is necessary to consider the type of theft that is associated with the performance of professional duties. These include fraud, theft, embezzlement or misappropriation.

Initially, signs are identified that are inherent in all types of theft, including the fact that the object is property.

The property has the following characteristics:

• has a certain value, that is, if things are seized that have no material value, no crime is formed;
• the property must belong to another person, this means that the culprit is a financially responsible person;
• the cost exceeds one established minimum wage.

The objective side is expressed in the confiscation and (or) circulation of someone else’s property by the perpetrator for his own benefit. When the culprit seized an item, but did not get the opportunity to dispose of it, it is considered as theft. The act is completed from the moment of seizure and the opportunity to dispose of the property at one’s own discretion. If we consider the theft of precious metals from production, then it is considered completed from the moment the metal left the production area and was taken out through the entrance.

If an employee is detained at a checkpoint, then the offense is assessed as attempted theft. If the stolen metal was kept by the culprit for a short time, then this provides grounds for classification under Article 191 of the Criminal Code of the Russian Federation under a set of crimes.

The subjective side is represented by direct intent.

Illegal trafficking of precious metals. Arbitrage practice

MOSCOW CITY COURT

CASSATION DECISION dated April 27, 2011 in case No. 22-5784

Judge Bakhvalov A.V.

The judicial panel for criminal cases of the Moscow City Court, consisting of: presiding Nikishina N.V., judges Golov N.A., Davydov V.I., with secretary Z., considered at the court hearing dated April 27, 2011 the cassation submission of the deputy Ostankino Interdistrict Prosecutor of Moscow against the verdict of the Ostankino District Court of Moscow dated March 17, 2011, by which: V., previously convicted: on November 11, 2008 by K. District Court of M. under Part 1 of Art. 222 of the Criminal Code of the Russian Federation to six months in prison; On June 19, 2009, K. by the district court of M. under Part 3 of Art. 30, part 1 art. 222 of the Criminal Code of the Russian Federation to eight months in prison; On March 23, 2010, by the district court of M. under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to one year of imprisonment, with the sentence being served in a high-security correctional colony, released on December 31, 2010 after serving the sentence, convicted under Part 1 of Art. 191 of the Criminal Code of the Russian Federation to punishment in the form of 8 (eight) months of correctional labor, with the withholding of 10% of the wages of the convicted person to the state. according to Part 3 of Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation to punishment in the form of 6 (six) months of correctional labor, with the withholding of 10% of the wages of the convicted person to the state. Based on Part 2 of Art. 69 of the Criminal Code of the Russian Federation, by partial addition of punishments, V. was finally sentenced to 9 (nine) months of correctional labor, with 15% of the convict’s salary being withheld to the state. The fate of the material evidence has been resolved. Having heard the report of judge Golov N.A., prosecutor Bobek M.A., who supported the arguments of the cassation presentation partially and believed to change the verdict, reclassify V.’s actions from Part 1 of Art. 191; Part 3 Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation on Part 1 of Art. 191 of the Criminal Code of the Russian Federation, lawyer I.V. Glotova, who objected to the satisfaction of the cassation motion and believed that the verdict should be left unchanged, the judicial panel

installed:

By a court verdict, V. was found guilty of illegally storing precious metals in any form or condition, with the exception of jewelry and household items and scrap of such items, in violation of the rules established by the legislation of the Russian Federation. In addition, V. was found guilty of attempting to complete a transaction related to precious metals, in violation of the rules established by the legislation of the Russian Federation, in any form, condition, with the exception of jewelry and household products and scrap of such products, that is an intentional action directly aimed at committing a crime, but the crime was not completed due to circumstances beyond his control. According to the verdict, the crimes were committed in Moscow under the circumstances set out in the verdict. At the court hearing, V. fully admitted himself guilty of the acts accused of him. The cassation submission raises the question of changing the sentence and qualifying V.’s actions only under Part 3 of Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation, due to the fact that the illegal storage of precious metals was imputed to V. unnecessarily, since, according to the case materials, the convict stored two ingots of silver-based alloys for a short time - no more than four hours and 30 minutes, after which he attempted to sell the said ingots The circumstances of the crime indicate that V. had no intent to store the bullion. Thus, all V.’s actions were carried out for the purpose of selling precious metals. Having checked the case materials and discussed the arguments of the cassation submission, the judicial panel finds the guilty verdict subject to change. The verdict in this case, in accordance with the petition of the defendant V., was decided in a special trial procedure established by Art. 316 of the Code of Criminal Procedure of the Russian Federation, for which the convict himself petitioned at the court hearing, whose petition was supported by his lawyer and to which the state prosecutor did not object. Having checked the validity of the charges brought against V., the court qualified his actions under Part 1 of Art. 191; Part 3 Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation, however, from the case materials it is clear that the illegal storage of precious metals, which was imputed to V., was not confirmed, since all of V.’s actions were committed for the purpose of selling precious metals, while the sale of two silver-based bars was not completed end due to circumstances beyond his control. Under such circumstances, the judicial panel believes that the court, having correctly established the circumstances of the case at the court hearing, incorrectly qualified V.’s actions under two articles. According to the judicial panel, all actions of V. are subject to qualification under Part 3 of Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation, since he committed an attempt to complete a transaction related to precious metals, in violation of the rules established by the legislation of the Russian Federation in any form, condition, with the exception of jewelry and household products and scrap of such products, that is, deliberate actions directly aimed to commit a crime, but the crime was not completed due to circumstances beyond his control, as correctly indicated in the cassation submission. In connection with the change in the sentence regarding V.’s conviction under Part 1 of Art. 191 of the Criminal Code of the Russian Federation, the indication for the application of Art. 69 part 2 of the Criminal Code of the Russian Federation when assigning V. punishment for a set of crimes. Otherwise, the verdict is legal and justified. The punishment imposed on V. under Part 3 of Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation, meets the requirements of Art. Art. 6 and 60 of the Criminal Code of the Russian Federation. The court's conclusions about the need to impose punishment in the form of correctional labor, and about the absence of grounds for applying Art. Art. 64 and 73 of the Criminal Code of the Russian Federation are motivated in the verdict. The court of first instance did not commit any violations of the norms of criminal procedure law, entailing the reversal of the sentence, when considering the case on the merits. Based on the aforesaid and guided by Article. Art. 377, 378 and 388 Code of Criminal Procedure of the Russian Federation, judicial panel

determined:

The verdict of the Ostankino District Court of Moscow dated March 17, 2011 in relation to V. is amended and V.’s actions are reclassified from Part 1 of Art.
191; Part 3 Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation at Part 3 of Art. 30, part 1 art. 191 of the Criminal Code of the Russian Federation, according to which V. is sentenced to 6 (six) months of correctional labor, with 10% of the convict’s salary being withheld to the state, monthly. Exclude from the sentence the reference to the application of Art. 69 part 2 of the Criminal Code of the Russian Federation. The rest of the sentence remains unchanged. The cassation motion is satisfied. PRESIDIUM OF THE MOSCOW CITY COURT DECISION of April 10, 2008 in case No. 44у-188/08
Presidium of the Moscow City Court consisting of: presiding officer Egorova O.A., members of the presidium Kolyshnitsyna E.N., Kurtsinsh S.E., Dmitrieva A. N., Vasilyeva N.A., Tarasova V.F. examined at a court hearing a criminal case based on the supervisory appeal of the convicted L. against the verdict of the Izmailovsky District Court of Moscow dated July 11, 2007, by which L., born on April 16, 1970 in Moscow, with no previous convictions, was convicted: - under Art. 191 part 1 of the Criminal Code of the Russian Federation - to 7 months of correctional labor with the deduction of 15% of monthly earnings to the state income; - according to Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation - to 7 months of correctional labor with the deduction of 15% of monthly earnings to the state.

Based on Art. 69 of the Criminal Code of the Russian Federation for the totality of crimes by partial addition of punishments, 1 year of correctional labor was finally imposed with the deduction of 15% of monthly earnings as state income.

The cassation ruling of the judicial panel for criminal cases of the Moscow City Court dated September 19, 2007 changed the said sentence: it was decided to consider that the punishment for the totality of crimes was imposed using Part 2 of Art. 69 of the Criminal Code of the Russian Federation. The rest of the sentence was left unchanged.

In the supervisory appeal, convicted L. raises the issue of canceling the cassation ruling and transferring the case for a new cassation hearing, since he believes that it was made in violation of the requirements of the criminal procedure law. He indicates that he was not given a copy of the verdict, which prevented him from filing a cassation appeal, and he was not notified at all about the consideration of the case in the cassation court, and therefore was deprived of the opportunity to conclude an agreement with a lawyer. In addition, he claims that he was not notified of the preparation of the protocol of the court session and of the prosecutor’s filing of a cassation submission.

Having heard the report of the judge of the Moscow City Court V.E. Rolgeiser. speech of the First Deputy Prosecutor of Moscow V.V. Rosinsky, who believed that the supervisory complaint should be left unsatisfied and the court verdict changed: L.’s actions related to the illegal trafficking of precious metals should be qualified as one crime under Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation with the imposition of punishment in the form of 7 months of correctional labor with the withholding of 15% of earnings to the state, with the exception of the reference to Art. 69 part 2 of the Criminal Code of the Russian Federation, presidium

installed:

L. was found guilty of illegal possession of precious metals under the following circumstances. So, in September 2006 (a more exact time has not been established), passing by a garbage container located next to house No. 97 on the street. Pervomaiskaya, Moscow, in violation of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” (as amended by the Federal Law of January 10, 2003 N 15-FZ), Resolution of the Government of the Russian Federation N 431 of June 25, 1992 “ On the procedure for collecting, receiving and processing scrap and waste of precious metals and precious stones”, as well as clause 12 of the List of functions of the abolished Committee of the Russian Federation on Precious Metals and Precious Stones, transferred to the Ministry of Finance of the Russian Federation, approved by Decree of the Government of the Russian Federation N 1378 of November 21, 1996, not having a registration certificate issued by state inspections of the Russian State Assay Chamber under the Ministry of Finance of the Russian Federation, I found, i.e. illegally acquired, by appropriating what was found, contact plates and scrap contact plates made of white metal weighing 984.6 grams, made of an alloy based on the precious metal - silver, the total estimated weight of which is 551.4 grams. After this, L. took and transferred the specified precious metal to the apartment at the place of his actual residence at the address: Moscow, st. Pervomaiskaya, 97, apt. 11, where from this time until November 7, 2006, in violation of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” (as amended by the Federal Law of January 10, 2003 N 15-FZ), Government Decrees RF dated 02.22.93 N 152 “On the extraction and use of precious metals and diamonds on the territory of the Russian Federation and strengthening state control over their production and consumption”, Regulations approved by the Government of the Russian Federation dated 06.30.94 N 756 “On transactions with precious metals on the territory of the Russian Federation "(as amended by Decree of the Government of the Russian Federation dated August 24, 2004 N 433), without handing over the specified precious metal to the state institution for the formation of the State Fund of Precious Metals and Precious Stones of the Russian Federation under the Ministry of Finance of the Russian Federation, illegally stored it in his belongings in the above-mentioned apartment. On November 7, 2006, at approximately 11:30 a.m., L. transferred the specified precious metal to the city square, located at the address: Moscow, st. Pervomaiskaya, 81.

He (L.) was found guilty of attempting to commit a transaction related to precious metals under the following circumstances.

Having committed, under the above circumstances, the illegal storage of precious metals, on November 7, 2006, at approximately 11:30 a.m., while in the city square at the address: Moscow, st. Pervomaiskaya, 81, in violation of the rules for transactions with precious metals established by the Regulations approved by the Government of the Russian Federation dated June 30, 1994 N 756 “On transactions with precious metals on the territory of the Russian Federation” (as amended by Resolution of the Government of the Russian Federation dated August 24, 2004 N 433 ), as well as the Regulation of the Government of the Russian Federation dated 02/22/93 N 152 “On the extraction and use of precious metals and diamonds on the territory of the Russian Federation and strengthening state control over their production and consumption”, Decree of the President of the Russian Federation dated 02/22/92 N 179 “On types of products ( works, services) and production waste, the free sale of which is prohibited" (as amended by Decree dated December 30, 2000 N 2111) and the appendix to this Decree, tried to sell contact plates and scrap contact plates made of white metal, weighing 984.6 g., made of an alloy based on precious metal - silver, the total estimated mass of which is 551.4 g., Karpov G.O. at a price of 2 US dollars per 1 gram, however, he was unable to complete the crime due to circumstances beyond his control, because Karpov G.O. refused the deal, and L.’s actions were stopped by employees of the Department of Economic Crimes of the Internal Affairs Directorate of the Eastern Administrative District of Moscow.

The court correctly established the factual circumstances of the case related to L.’s illegal trafficking of precious metals, and reasonably ruled against him a guilty verdict, which was not essentially challenged in the supervisory appeal.

From the case materials it is clear that L. was duly notified of the date, time and place of the hearing of the case in the cassation court, because the notice was sent to him 15 days before the date of the court hearing, which meets the requirements of Part 2 of Art. 376 Code of Criminal Procedure of the Russian Federation.

Since L. did not make any request to familiarize himself with the protocol of the court session, then, within the meaning of the law, the court was not obliged to notify him of the preparation of the protocol. As for the cassation presentation of the state prosecutor, it only raised the question of clarifying the relevant part of Art. 69 of the Criminal Code of the Russian Federation, with reference to which punishment was imposed for a set of crimes, which did not in any way affect the interests of the convicted person and therefore it was not necessary to send him a notice about this.

It is also impossible to agree with the statement of the convict that he has not yet been given a copy of the verdict in the case, since from the presented photocopy of the register of the Izmailovsky District Court of Moscow it follows that a copy of the verdict was sent to the convict L. at his place of residence by registered mail on July 18, 2007 of the year. At the same time, despite receiving a copy of the verdict, the convicted person has so far made no attempt to file a cassation appeal in the prescribed manner or raise the issue of reinstating the missed deadline for filing such a complaint. L. also avoided personal participation in the meeting of the presidium of the Moscow City Court by sending a statement with a request to consider the case in his absence.

In addition, from the cassation ruling it is clear that the defense of L.’s interests in the courts of the 1st and 2nd instances was carried out by the same lawyer A.N. Korolev, and therefore the arguments of the convicted person about the violation of the accused’s right to defense are untenable.

In this regard, the presidium does not find legal grounds for reviewing court decisions based on the arguments of the supervisory complaint of the convicted L. and considers it necessary to leave it without satisfaction.

At the same time, the qualification of L.’s actions related to the illegal trafficking of precious metal as two independent crimes (illegal storage and attempted illegal transaction for the sale of silver) is erroneous.

Disposition part 1 art. 191 of the Criminal Code of the Russian Federation includes the conclusion of a transaction related to precious metals, natural precious stones or pearls, in violation of the rules provided for by the legislation of the Russian Federation, as well as illegal storage, transportation or transfer of precious metals, natural precious stones or pearls in any form, condition, for with the exception of jewelry and household products and scrap of such products, i.e. provides for several qualifying criteria, each of which is sufficient to bring a person to criminal liability for certain actions.

The court found that in September 2006, L. illegally acquired, by appropriating what was found, contact plates and scrap contact plates made of white metal weighing 984.6 grams, made from an alloy based on the precious metal - silver, the total estimated weight of which is 551.4 grams , and began to store them at his place of residence. After that, while trying to sell them on November 7, 2006, he was detained by police officers.

Thus, L. acted with the sole intention of illegally trafficking the same amount of precious metal, and the presence in the actions of the culprit of several qualifying features provided for in Part 1 of Art. 191 of the Criminal Code of the Russian Federation does not at all provide grounds for qualifying the offense as a combination of several independent crimes. At the same time, the court did not take into account the fact that the transaction for the sale of silver in L.’s possession also presupposed the possession of this precious metal, i.e. illegal storage of it before the transaction is completed.

In this regard, the presidium comes to the conclusion that L.’s actions, for which he was convicted under Art. 191 Part 1 of the Criminal Code of the Russian Federation and Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation, must be qualified as one crime under Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation, i.e. as an attempt to commit an illegal transaction related to a precious metal that was not completed due to circumstances beyond the control of the perpetrator (due to the refusal of the intended buyer to purchase silver).

Since this resulted in an incorrect application of the criminal law in the case, in accordance with Art. Art. 409, 379 part 1 clause 3 of the Code of Criminal Procedure of the Russian Federation there are sufficient grounds for reviewing court decisions in the manner of supervision.

When assigning punishment, the presidium proceeds from the provisions of Art. Art. 60, 66 of the Criminal Code of the Russian Federation, information about the identity of the perpetrator and other circumstances of the case, which are referred to in the reasoning part of the verdict.

Based on the above, guided by art. Art. 407 and 408 Code of Criminal Procedure of the Russian Federation, presidium

decided:

1. The supervisory complaint of the convicted L. shall be left unsatisfied. 2. The verdict of the Izmailovsky District Court of Moscow dated July 11, 2007 and the cassation ruling of the judicial panel for criminal cases of the Moscow City Court dated September 19, 2007 in relation to L. amend: - his actions for which he was convicted under Art. 191 Part 1 of the Criminal Code of the Russian Federation and Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation, qualify as one crime under Art. Art. 30 part 3, 191 part 1 of the Criminal Code of the Russian Federation, according to which to impose 7 months of correctional labor with the deduction of 15% of earnings to the state; - exclude the indication of the use of the provisions of Art. 69 part 2 of the Criminal Code of the Russian Federation.

Chairman O.A.EGOROVA

Qualifying features

Large size provided for in Part 1 of Article 191 of the Criminal Code of the Russian Federation is considered as qualifying signs of this act. Its amount is determined in the note to Article 170.2 of the Criminal Code and is equal to 2 million 250 thousand rubles.
Part two includes such qualifying criteria as the commission of an act by a group of persons by prior conspiracy or by an organized group.

Organized group:

• is sustainable;
• its members have united to commit one or more criminal acts;
• Each participant has their own role and responsibilities.

A group of persons by prior conspiracy:

• several persons (at least two) agreed to commit a crime;
• in this case, an agreement could be reached before the crime began.

Judicial practice under Article 191 of the Criminal Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation dated April 20, 2017 N 836-O
RIGHTS BY THE PROVISIONS OF ARTICLE 191 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,

Determination of the Constitutional Court of the Russian Federation dated January 30, 2020 N 250-O-R

1. By ruling No. 831-O dated March 27, 2022, the Constitutional Court of the Russian Federation refused to accept for consideration the complaint of citizen A.G. Kazistov for violation of his constitutional rights by Article 191 of the Criminal Code of the RSFSR and Article 317 of the Criminal Code of the Russian Federation, since it did not meet the requirements of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, according to which a complaint to the Constitutional Court of the Russian Federation is considered admissible.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 31, 2017 N 74-APU17-6

- according to Part 2 of Art. 191 of the Criminal Code of the Russian Federation to imprisonment for a term of 4 years with a fine of 200,000 rubles; - according to Art. 316 of the Criminal Code of the Russian Federation to a fine of 200,000 rubles. Based on Part 3 of Art. of the Criminal Code of the Russian Federation by partial addition of punishments for the totality of crimes, finally Kazakov V.S. sentenced to imprisonment for a term of 7 years with a fine of 300,000 rubles, with restriction of freedom for 2 years, and a fine of 200,000 rubles.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 27, 2017 N 72-APU17-23sp

- 12/03/2014 by the Trans-Baikal Regional Court, taking into account the changes made by the appeal ruling of the Supreme Court of the Russian Federation dated 07/09/2015 under Part 4 of Art. 159, part 2 art. 330, part 3 art. Part 4 Art. 159, part 2 art. 191, part 4 art. 159, part 2 art. 291, paragraphs “g”, “k”, part 2 of Art. 105, part 3 art. pp. “a”, “g”, “k” part 2 art. 105, part 3 art. of the Criminal Code of the Russian Federation to 24 years in prison with a fine of 500,000 rubles, with restriction of freedom for 2 years,

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 25, 2018 N 83-APU17-14

by a resolution of the Deputy Prosecutor General of the Russian Federation L.G. Korzhinek. dated October 10, 2022, the request of the Prosecutor General's Office of Ukraine for the extradition of M.I. Andryushchenko was satisfied. to bring to criminal liability under Part 5 of Article 191 of the Criminal Code of Ukraine. This decision was appealed by Andryushchenko M.I. to the Bryansk Regional Court, which on November 20, 2022 rejected the complaint, recognizing the decision of the Deputy Prosecutor General of the Russian Federation as legal and justified.

Resolution of the Supreme Court of the Russian Federation dated February 15, 2019 N 47-AD19-1

By the resolution of the investigator of the Investigative Department of the Department of Internal Affairs of Russia for the Kvarkensky district of the Orenburg region dated September 25, 2022, the initiation of a criminal case was refused on the basis of paragraph 2 of part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation due to the absence of A.S. Fedorov in his actions. signs of a crime provided for in Part 1 of Article 191 of the Criminal Code of the Russian Federation; materials from the audit regarding A.S. Fedorov were highlighted. on the grounds of an administrative offense provided for in Article 19.14 of the Code of the Russian Federation on Administrative Offenses.

Features of the investigation

The priority direction of the process of investigating a criminal act regarding precious metals and stones is their presence, which provides the basis for qualifying the act under the article in question.
If a situation arises where there are no materials that are the subject of Article 191 of the Criminal Code of the Russian Federation, further investigation becomes impossible.

After the jewelry is seized, an analysis is carried out aimed at establishing the possibility of classifying the materials as prohibited for circulation. If, after assessing the materials, it is determined that an appropriate permit is required to conduct transactions with metals and stones, then the owner is required to provide documentation confirming the legality of the transaction.

The last stage is the analysis of the transaction regarding its legality. If it is completed successfully, then criminal liability does not apply. If the legal requirements for the handling of stones and metals are not met, liability arises.

A comment

Currently, Article 191 of the Criminal Code of the Russian Federation includes 2 parts.
The totality of economic relations is provided as the generic object of this criminal act. A species object is a relationship that develops in the sphere of economic activity. Direct - relations in the sphere of legal circulation of precious metals and stones, pearls. For information! Article 191 of the Criminal Code of the Russian Federation is of a referential nature: this means that when passing a sentence, the court must indicate which rules were violated by the perpetrator. First of all, this is an act adopted at the legislative level in 1998 called “On Precious Metals and Precious Stones.” The subject matter of the act includes precious metals, stones or pearls. It should be borne in mind that precious stones include items that contain the specified content, as well as raw materials that include a small content of precious metals. In the case where the culprit acted intentionally, then when there is an attack on raw materials, including precious metals, the assessment is given under Article 191 of the Criminal Code.

In order to correctly qualify the crime, it is necessary to accurately determine the value of precious stones and metals. Prices are set by the Bank of the Russian Federation. The prices valid at the time of the commission of the illegal act are subject to accounting.

The objective side includes actions to carry out transactions with precious stones and metals in violation of legal norms. The transaction can be expressed:

• purchase and sale;
• exchange;
• loan;
• donation;
• transfer for storage and others.

Such transactions are classified as void.

Also, the objective side is illegal storage. It refers to deliberate actions that are associated with the actual presence of precious metals and stones in the possession of the perpetrator. They can be located in the home of the perpetrator, hidden in hiding places, in an official place, as well as in other places where their secrecy is ensured. Punishment for storage occurs regardless of how long it was.

In addition, storage can be carried out at a time when the precious metal is with the culprit, for example, in a bag, pockets and other personal belongings.

Important! If specially made devices are found to hide a precious metal or stone under clothing, this indicates the presence of direct intent for illegal storage.

When metal or stone is stored in a production facility in a place not specifically intended for this purpose, for example, in a closet, bathroom, table, shelf, etc., this can be classified as illegal storage. There may be a combination with attempted metal theft.

Storage can be carried out with the help of unauthorized persons, provided that they did not know that storage was taking place and about the contents.

This also includes the illegal transport of metals . It means their movement using any type of vehicle, and the accused must be directly present. Actions are classified as intentional. The item is moved from one place to another, while the rules established regarding the transport of metals are violated.

Such an act is completed at the moment the transportation begins, regardless of whether it ended successfully or not. It is worth noting that it is necessary to distinguish transportation from storage: if a person travels by any means of transport and has precious metals in his pocket, in a bag and other places, this should be classified as storage, and not as transportation. Transportation will be recognized when the specified items are in suitcases, travel bags, backpacks and other places specially designed for luggage transportation.

Another action included in the objective side is illegal forwarding. It refers to movement in the form of baggage, mail, courier or other means. The shipment is considered completed from the moment the items are handed over for shipment.

The listed actions represent a separate act. What matters is the execution of the listed actions, but the consequences that occur are not important.

The subject is an individual who is not deprived of sanity and has reached the age of 16 years.

The subjective side is expressed by intent. He can only be direct here. It is required to establish that the person knew in advance about the precious properties of the stone or metal. This can be assessed by the external data of the stone, its type and condition. An important point is to establish practical experience in working with precious stones and metals.

Characteristics of the crime

The generic object of the crime is social relations in the sphere of legitimate economic activity, which undermine the normal functioning of the state.

A specific object is the procedure for the circulation of currency and valuables in the state.

The direct subject of the criminal act will be precious stones according to the established list, pearls, and precious metals. Household items, costume jewelry, jewelry, and scrap precious metals will not be considered crime items.

The subject of a crime is any individual (citizen, foreigner, stateless person) who has reached the age of criminal responsibility. In Russia, in this case, this age is reaching the 16th birthday. There is no special subject provided.

The danger of this crime lies in the fact that the illegal trafficking of precious stones and metals in Russia, as well as their export outside the country, can significantly affect exchange rates, cause the depreciation of materials that are considered the country’s gold reserves, and undermine stable market relations.

In order to control the processes occurring with metals and stones that have jewelry value, in Russia it is necessary to obtain a license for this type of activity. Moreover, the state ensured close attention to transactions with precious metals.

From the subjective side, this crime is characterized by the presence of direct intent, i.e. the person knows that he is committing a crime, assumes the consequences that may occur, but, no matter what, wants them to occur.

The purpose of committing a crime is most often selfish. The purpose and motives do not affect the qualification of the crime.

From the objective side, illegal actions with precious metals consist of committing one or more of the alternative acts:

• concluding transactions (both orally and in writing);
• illegal possession;
• illegal transportation or shipment (smuggling).