1. Illegal acquisition, transfer, storage, transportation, forwarding or carrying of explosives or explosive devices -
shall be punishable by imprisonment for a term of six to eight years with a fine in the amount of up to one hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months.
2. Illegal sale of explosives or explosive devices -
shall be punishable by imprisonment for a term of eight to eleven years with a fine in the amount of one hundred thousand to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of six months to one year.
3. The acts provided for in part one of this article, committed:
a) by a group of persons by prior conspiracy;
b) by a person using his official position;
c) using information and telecommunication networks, including the Internet, -
shall be punishable by imprisonment for a term of eight to twelve years with a fine in the amount of three hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one year to eighteen months.
4. Acts provided for in the first part of this article, committed by an organized group, -
shall be punishable by imprisonment for a term of ten to fifteen years with a fine in the amount of five hundred thousand to eight hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years.
5. The act provided for in part two of this article, committed:
a) by a group of persons by prior conspiracy;
b) by a person using his official position;
c) using information and telecommunication networks, including the Internet, -
shall be punishable by imprisonment for a term of ten to fifteen years with a fine in the amount of five hundred thousand to eight hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years.
6. An act provided for in part two of this article, committed by an organized group, -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of five hundred thousand to one million rubles or in the amount of the wages or other income of the convicted person for a period of two to four years.
Notes. 1. A person who voluntarily surrendered the items specified in this article is exempt from criminal liability under this article.
2. For the purposes of this article and other articles of this Code, explosives are understood as chemical compounds or mixtures of substances that are capable of rapid self-propagating chemical transformation (explosion) under the influence of external influences.
3. For the purposes of this article and other articles of this Code, explosive devices are understood as industrial or homemade products containing an explosive substance, functionally intended to produce an explosion and capable of explosion.
Commentary to Art. 222.1 of the Criminal Code of the Russian Federation
1. Crimes provided for in the commented article and art. 222 of the Criminal Code of the Russian Federation, differ only in subject matter.
In the article being commented on, these are explosives or explosive devices.
2. Explosives should be understood as chemical compounds or mechanical mixtures of substances capable of rapid self-propagating chemical transformation and explosion without access to air oxygen. These include TNT, ammonites, plastites, elastites, gunpowder, solid rocket fuel, etc.
3. Explosive devices should be understood as industrial or home-made products that functionally combine an explosive substance and a device for initiating an explosion (fuse, fuse, detonator, etc.).
4. Imitation pyrotechnics and lighting products do not belong to explosives and explosive devices.
A pyrotechnic mixture can be recognized as an explosive if it has the ability to explode without access to oxygen.
5. For the concepts of acquisition, transfer, sale, storage, transportation or carrying, see the commentary to Art. 222.
6. The qualifying features of Parts 2 and 3 (a group of persons by prior conspiracy or an organized group) are disclosed in the commentary to Art. 35.
7. The subjective side of the crime is an intentional form of guilt.
8. The subject of the crime is a sane individual who has reached the age of 14.
9. About the use of notes. for the commented article, see commentary to art. 222.
Article 223. Illegal manufacture of weapons
Judicial practice: sentences and punishment under Art. 222.1 of the Criminal Code of the Russian Federation
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Acquittal under Article 222 Part 1 of the Criminal Code of the Russian Federation.
SENTENCE
named after the Russian Federation
Krasnensky District Court of the Belgorod Region, consisting of:
presiding judge Tolmachev Yu.N., with the participation
state prosecutors - Deputy Prosecutor of the Krasnensky District Sorokoletova N.V. and assistant prosecutor Akieva O.R.;
defendant Gorbunov S.A.;
defense lawyer - lawyer V.N. Chetverikov;
under the secretary - O.N. Titova;
Having considered in open court in accordance with the general procedure a criminal case in relation to:
Gorbunov S.A., born (date, address), residing (address), citizen of the Russian Federation, higher education, married, ......., not convicted,
accused of committing a crime under Art. 222 part 1 of the Criminal Code of the Russian Federation,
INSTALLED:
The state prosecution and investigative authorities accuse Gorbunov of committing an intentional crime under the following circumstances:
On September 13, 2003, in the afternoon, S.A. Gorbunov, without having the appropriate licenses to purchase, store and carry rifled long-barreled firearms, was in the house of N.I. Frolov. (address), received from Frolov N.I. for temporary storage, a single-shot rifle model TOZ-8M of 5.6 mm caliber, suitable for functional use, intended for shooting and hunting, which is a rifled long-barreled firearm.
This rifle is Gorbunov S.A. on the same day, he transferred it to the garage of his household, located at (address), where he hid it for storage purposes and deliberately, illegally kept it until March 10, 2010, when it was discovered and seized by employees of the Krasnensky District Department of Internal Affairs during an inspection of the scene of the incident.
The defendant Gorbunov did not admit his guilt in committing the act charged to him and showed the court that in 2003 he took the gun from his relative Frolov (now deceased), because he abused alcohol, often caused trouble in the family and could shoot someone with it. He kept the gun in his garage. On March 10, 2010, he was invited to the Krasnensky District Department of Internal Affairs by officers Ryabtsev and Yarovaya, who reported that they had information according to which he might have a gun illegally. He confirmed to them that he had a gun and offered to bring it to the police department the next day. But the police rejected this option, said that the gun had to be returned that same day, and offered to go to his house. At home, he opened the garage and brought a gun, which was wrapped in a blanket, to the gate. The police asked him to find witnesses to draw up reports. He invited his neighbors - spouses (citizens of F.). Believes that in fact there was a voluntary handing over of weapons. At that time, he did not know about the existence of such a right and the consequences of such actions, since the police did not explain this to him. I believed that the police were documenting everything in accordance with the law, which is why I signed all the documents they drew up.
In addition to the testimony of the defendant, his guilt in committing the act accused of him is refuted by other evidence examined at the court hearing.
Thus, the basis for conducting an investigation against the defendant was the report of police detective A.A. Yarovoy that he had received operational information according to which Gorbunov kept a TOZ-8m rifle in his household. By resolution of the head of the internal affairs department, verification of this information was entrusted to Yarovoy and O.V. Ryabtsev.
Yarovoy and Ryabtsev each separately confirmed that they did not have accurate information about Gorbunov’s rifle. They only had operational information, the source of which they could not indicate. On March 10, 2010, to verify this information, they called Gorbunov to the department for a conversation. No operational records were kept on this fact; no specialized operational measures were taken against the defendant. They informed Gorbunov that they had such information, asked whether it was true and offered, if he had a gun, to hand it over voluntarily, verbally explaining the legal consequences. They did not draw up any protocols, receipts or other documents confirming an explanation of the possibility of voluntary extradition and the legal consequences of such actions. Gorbunov replied that he did not have any illegally stored weapons, but allowed him to inspect his home, about which he wrote a statement. Having driven to his home, they invited witnesses - (surnames of witnesses), in whose presence they again verbally invited the defendant to voluntarily hand over the illegally stored weapons and explained that in this case he would be released from criminal liability. They did not include these explanations in the minutes or otherwise document them in writing. After Gorbunov explained that he did not have any gun, they began an inspection. In the right corner near the back wall of the garage they found a gun wrapped in cloth. The results of the inspection were recorded using photography. After this, the inspection participants went into the house, where they drew up an inspection report and took explanations from its private owners.
The court believes that the testimony of these witnesses in terms of explaining to the defendant the possibility of voluntary surrender of weapons and the legal consequences of such actions, as well as the process of detecting and confiscating weapons, does not correspond to objective reality. They not only contradict the testimony of the defendant, witnesses (the names of witnesses) and Gorbunov’s wife, but are also not confirmed by the inspection report of the defendant’s home.
The inspection was carried out on March 10, 2010 with the consent of the defendant and his wife. From the inspection report it follows that the gun, wrapped in cloth, was in the garage not at the far wall in the corner, as Yarovoy and Ryabtsev indicate, but at the right wall near the gate. The protocol does not contain information that before the start of the inspection the defendant was asked to voluntarily hand over the items prohibited in civil circulation, in particular weapons, in his possession, and the legal consequences of voluntary surrender were explained (note to Article 222 of the Criminal Code of the Russian Federation).
Two witnesses, each separately, confirmed that on March 10, 2010, in the afternoon, the defendant came to them, who said that he gave the police a gun he kept and asked them to be witnesses, as this was necessary for drawing up protocols. Entering the courtyard of Gorubnov's household, they saw that the garage was open, and at its gate stood a gun wrapped in cloth. Police officers Yarovaya and Ryabtsev were near the garage door. One of the policemen took photographs. After that they went to the defendant's house. There the police drew up protocols and showed where to sign.
The defendant’s wife explained that on March 10, 2010, in the morning, Yarovoy and Ryabtsev came to her, looking for her husband. At that moment he was in the village. Red. That afternoon, her husband came home with these police officers. He explained to her that he was giving the gun he kept to the police. Her husband invited their neighbors (the names of the witnesses) as witnesses. After filling out the documents, the police left.
The first of the witnesses showed the court that the now deceased Frolov N.I. was his brother. He knows nothing of the essence of the matter. He knows nothing about the circumstances of Gorbunov receiving the gun.
From the testimony of this witness read out in court and given during the preliminary investigation, it follows that he, from the words of the defendant, knows that he received the gun from N.I. Frolov.
After listening to this testimony, the first witness explained that he did not give such testimony to the investigator, he signed it without reading it, since the investigator assured him that after this he would not be summoned anywhere, including to court.
According to the licensing and permitting system of the Department of Internal Affairs for the Krasnensky district, Gorbunov does not have any registered rifled firearms.
According to the conclusion of the ballistic examination, the gun that Gorbunov kept is a rifled long-barreled firearm and is a single-shot rifle of the TOZ-8M model with a caliber of 5.6 mm.
These expert conclusions are scientifically substantiated and do not raise doubts in the court.
From the testimony of the defendant, read out at the court hearing at the request of the state prosecutor, given by him as a suspect and accused, as well as the testimony of witnesses, it follows that before the inspection, the police officers offered Gorbunov to voluntarily hand over the weapons illegally kept in his possession. These protocols do not contain any indication of the legal consequences of voluntary extradition.
After listening to the read-out testimony, defendant Gorbunov and both witnesses explained that they did not confirm them. The witnesses stated that they signed these statements due to the fact that investigator Ushakov promised them that after this they would not be summoned anywhere, including to court.
Gorbunov stated that throughout the investigation, due to his legal illiteracy, and also because of the fear of being sentenced to imprisonment, he listened to investigator Ushakov, who promised that if all his requirements in the case were fulfilled, he would receive a punishment of no more than 4 thousand fine For this reason, he signed the interrogation protocols, filed a petition to consider the case in a special manner, and even on June 09, 2010, at the call of Ushakov, he arrived at the Krasnensky District Prosecutor's Office, where, under his dictation, he wrote a confession protocol.
This argument of Gorbunov was confirmed. From the protocol of the confession it follows that it was accepted by the investigator of the Alekseevsky interdistrict department of the CKP Ushakov A.I. 06/09/2010, that is, 3 months after the gun was seized. The place where it was compiled was the prosecutor's office of the Krasnensky district, despite the fact that other investigative actions with both the defendant and the witnesses were carried out by the investigator in the city of Alekseevka, as follows from the protocols of their interrogations read out at the court hearing. In his confession report, Gorbunov wrote that since 2003 he had illegally stored a rifle in the garage of his household. On March 10, 2010, he refused to voluntarily hand her over to police officers. However, this protocol also does not contain any indication that the police officers explained to him the legal consequences of voluntary extradition.
Investigator Ushakov at the court hearing denied the fact of summoning Gorbunov to obtain a confession. He testified that on June 9, 2010, he came to the prosecutor's office of the Krasnensky district on work issues. I didn’t call Gorbunov. The defendant himself found him in the prosecutor's office and asked him to confess. He did not dictate its content to Gorbunov. He considers the fact that he accepted the appearance 3 months after the seizure of the weapon to be insignificant. He also denied the facts stated by the witnesses about their testimony due to conviction on his part.
The court believes that the protocol of appearance was adopted in violation of the law. Within the meaning of Part 1 of Article 75 of the Criminal Code of the Russian Federation, surrender must be voluntary, which means a conscious active action of a person who has committed a crime associated with contacting the police, the prosecutor's office or the court with a statement about what he has done, when the investigative authorities have nothing is aware of the crime committed, or is aware of the fact of the criminal act, but the person who committed it is not known.
Having assessed all the evidence presented by the parties in their totality, the court finds that the defendant Gorbunov did, from September 13, 2003 to March 10, 2010, intentionally and illegally store a single-shot rifle of the TOZ-8M model of 5.6 mm caliber, which is a rifled long-barreled firearm. He received it from his now deceased relative. Police officers, including Yarovoy and Ryabtsev, knew nothing about the existence of this fact until March 10, 2010. Moreover, on March 10, they only had operational information (unverified information, rumors) that Gorbunov might be illegally storing weapons. There were no grounds to initiate a criminal case based on this information. Further actions of the operational officers of the Department of Internal Affairs were aimed at verifying this information, and therefore Gorbunov was called. During the conversation with the defendant, the police did not explain to him the possibility, if he had a weapon, to voluntarily hand it over, and did not tell him about the legal consequences of such actions. The corresponding receipt was not presented to the court. Despite this, Gorbunov voluntarily told the police that he kept a gun. He even offered to bring him to the department himself, but was refused. To their offer to go to his home to get a gun, he agreed, despite the fact that he could refuse to inspect his home without court permission, and during the time the police officers received such permission, he had the opportunity to return home and destroy or throw away the gun. Instead, he allowed an inspection of his home, about which he wrote a corresponding statement. At home, he himself showed the police that the gun was in the garage and took it to the gate. Further, at the request of the operatives, he personally invited the neighbors to “be witnesses” when drawing up the inspection report. These circumstances were confirmed by witnesses, when they arrived, the garage was already open, the gun was standing at its gate, and the police were nearby. The fact that the gun was at the gate at the start of the inspection is also confirmed by the inspection protocol (photo table - appendix to the inspection protocol, photos No. 5 and 8). Thus, the defendant’s argument that he gave the gun to the police even before the inspection began is convincing and confirmed by the evidence examined at the court hearing.
The argument of the state prosecutor that the testimony of Ryabtsev, Yarovoy and Ushakov is truthful, and the testimony of Gorbunov and the witnesses given at the court hearing is false, since the investigator of the Alekseevsky interdistrict department of the CKP Shulzhenko, based on his report, carried out an investigation into the actions of law enforcement officers of any violations of the law have not been established, is inconclusive. From the resolution presented to the court on the refusal to initiate a criminal case dated October 4, 2010, it follows that the check was carried out formally: explanations were received only from Ushakov, Yarovoy and Ryabtsev, on the basis of which a conclusion was made about the falsity of the testimony of witnesses and Gorbunov, given by them in court. Meanwhile, the assessment of evidence, when considering a criminal case on its merits, is the prerogative of the court and no one else.
The act of Gorbunov S.A. the investigative authorities classified it as a crime under Article 222 Part 1 of the Criminal Code of the Russian Federation - illegal acquisition and storage of firearms.
Such a crime belongs to the category of continuing ones, that is, the beginning of the act is calculated from the date of the illegal acquisition of weapons, and it is completed at the moment of its discovery by law enforcement officers, provided that this discovery was not related to the fact of voluntary surrender by the person who kept the weapon.
In this case, no weapons were confiscated during Gorbunov’s arrest. There were no investigative actions aimed specifically at the seizure of weapons, since there was only operational information on this matter. The voluntary surrender actually began at the police department when Gorbunov confirmed that he had a gun, after which he himself brought the police to his home, where he handed it over even before the inspection. The duration of illegal storage of weapons has no legal significance for the fact of voluntary extradition. The law does not contain any pretrial restrictions for such actions.
The note to Article 222 of the Criminal Code of the Russian Federation states that a person who voluntarily surrendered the items specified in this article is exempt from criminal liability unless his actions contain another crime.
Gorbunov’s actions do not contain any other corpus delicti, and therefore he is subject to acquittal due to the absence of corpus delicti in his actions.
Gorbunov has the right to rehabilitation, enshrined in Part 5 of Article 5 of the 1950 Human Rights Convention, Art. 53 of the Constitution of the Russian Federation, as well as in Chapter 18 of the Code of Criminal Procedure of the Russian Federation.
The procedural costs in the case are the amount of 2,685 rubles 36 kopecks - remuneration for the lawyers who defended the defendant during the preliminary investigation and in court, which is subject to reimbursement at the expense of the state.
Based on the above, guided by Art. Art. 305-306, 309 Code of Criminal Procedure of the Russian Federation, court
SENTENCED:
Gorbunova S.A. on the charge brought under Part 2 of Article 24 of the Code of Criminal Procedure of the Russian Federation, acquitted.
Recognize S.A. Gorbunov right to rehabilitation.
A preventive measure in the form of a written undertaking not to leave the place and proper behavior for S.A. Gorbunov. cancel.
The material evidence - a single-shot rifle of the TOZ-8M model of 5.6 mm caliber, stored in the police department in the Krasnensky district of the Belgorod region - must be destroyed.
Procedural costs 2,685 rubles 36 kopecks - remuneration for the lawyers who defended the defendant during the preliminary investigation and in court to be reimbursed at the expense of the state.
The verdict can be appealed in cassation by filing a cassation appeal (presentation) to the judicial panel for criminal cases of the Belgorod Regional Court through the Krasnensky District Court of the Belgorod Region within 10 days from the moment of its proclamation.
Presiding judge Yu.N. Tolmachev
