Aleksey Dobrynin comments on article "Involuntary drug dealer". Legal Information Agency", 30 August 2018
Unawareness that the obtained product belongs to narcotics does not make its owner exempt from responsibility. In practice the very fact that the banned substance has been discovered is considered to be a serious crime regardless of the defender's guilt. Even the ECHR supports the absence of presumption of innocence for drug dealers.
The current list of narcotic and psychotropic substances comprises more than a thousand names – mostly incomprehensible chemical designations. Referring of this or that product to narcotics does not depend on trade names, synonyms or abbreviations used for their identification. As a result, even a person who has legally purchased some medicine may be accused of committing a crime.
Shaman's trap
Moscovite Maxim Gert found himself in such situation. While travelling in Peru he obtained a local liana decoction – "ayahuasca", a medical potion of the Amazon Indians. The customs of the "Domodedovo" airport seized suspicious bottles, and the expert examination found there 0.6 kg of the hallucinogenic substance banned in Russia – dimethyltryptamine (DMT). According to the current norms even 0.5 grams of this substance are regarded as significant, 2.5 grams – large, and 500 grams – an extra large amount. The court rejected the defendant's arguments that he had been unaware of the content of his luggage and found Maxim Gert guilty of smuggling and an attempt of selling drugs, and sentenced him to 11.5 years in a penal strict-regime colony.
And this is not the only case of that kind. 65 liters of that very "ayahuasca" were withdrawn from Aleksey Fadeyev by the customs in February 2014. He claimed that he had been unaware of the presence of a banned substance in the liquid, and that he had obtained bottles as a popular medicine and intended to use it for self-treatment. His travelling companion confirmed that they had been using the liquid for rejuvenation and health improvement during their vacation. The defence stressed that there had been no instant for smuggling, but the servants of Themis didn't accept these arguments. Moreover, the Supreme Court of Russia considered the punishment mild and increased it to ten years in the penal strict-regime colony.
Brazilian Shianka Rosha Eduardo, who had brought from Rio-de-Janeiro a potion permitted in his country, also failed to get acquittal of the charges. The defendant didn't deny being a wizard and that he had been touring in different countries in order to preach. Even the President of Brazil appealed to the Russian Authorities for softening the punishment for the compatriot. The court sentenced the "preacher" to 6.5 years in a penal strict-regime colony.
Arseny Kotcharovsky who was detained in "Sheremetievo'' with the liquid of the Peruvian wizards, will have to spend seven years behind bars. The court considered transportation of the narcotic substance and concealing it from the customs smuggling. The Moscow Regional Court concluded: "Arguments of the party for defence that liquids brought by Kotcharovsky are the national heritage of Peru and are in free trade in that state, cannot serve as the basis for exemption from criminal responsibility, for the national Peruvian legislation does not have force and is not applicable in the territory of the Russian Federation".
The international legal status of dimethyltryptamine and substances containing it remain disputable. It is not mentioned in the Single Convention on Narcotic Drugs which was ratified by the USSR and is obligatory to Russia. However, the International Narcotics Control Board (INCB) came to a conclusion seven years ago that spreading of initially local potions of the vegetable origin beyond their social-economic environment, including those who abuse psychoactive substances abroad, is dangerous. The official INCB report underlines: "The Board recommends governments to consider, if necessary, the establishment of control over such vegetable materials on the national level".
Bun with surprise
The poppy straw is also not included in the list of narcotic substances determined by the Convention. Its recognition as a banned substance in Russia entailed several the so-called "poppy cases". Charges were brought against businesspeople dealing with confectionery. Food poppy bought by them contained micro traces of poppy straw. Experts claim that several sorts of oil poppy with low level of active narcotic alkaloids were created in Russia, therefore chemists considered control over them pointless – it is possible to extract not more than 0.2 per cent of banned morphine from the poppy seeds, and it is not so easy.
One of the defendants, Roman Shilov, challenged the legality of including poppy straw in the national Russian list of narcotics. The Supreme Court of Russia confirmed that in accordance with the international legal acts, all parts of mown opium poppy, except seeds, are regarded as poppy straw. There is no uncertainty here. Moreover, the Single Convention does not limit authorities of the countries who have ratified it in banning trafficking of substances that can be used for illegal production of narcotics on their territory. "Such regulation is based on the complete ban on trafficking of the poppy straw in the Russian Federation because it is a gross danger to public health and wellbeing, in order to protect the rights and legal interests of other people, provide social security and public health", – concluded the Supreme Court of Russia.
The High Court ruled that prosecution for purchasing and other operations with substances which contain even a tiny amount of narcotics but are not included in the "black list", are legal.
Besides, the Russian legislation prohibits circulation of the so-called derivative substances. The list of such substances does not exist, therefore there is risk to be accused of dealing with narcotics even if chemical designation of the obtained substance is known. Dmitry Goryainov who got in such situation thinks that the Russian Government had the right to approve only the ultimate list of narcotic substances, and that its extension due to "derivatives" is unacceptable. The Supreme Court of Russia decided otherwise: "The concept "derivatives" is a generally accepted chemical term, it is also used in several normative-legal acts, international ones as well".
Deliberate carelessness
At the same time offenses connected with illegal drug trafficking are regarded as deliberate ones. I.e. the accused must be aware that their actions are unlawful, foresee and wish the occurrence of socially dangerous circumstances. But in reality even the awareness of a defendant that this or that substance is included in the "black list" is not proved.
However, legislation of some countries provides practically presumption of guilt for those suspected of transportation and other operations wth narcotics. A person carrying any kind of goods to France has to prove the legitimacy of their origin, otherwise he/she may be charged with smuggling. Defendants in such cases shouldn't rely on their conscientiousness in order to avoid criminal responsibility, for the latter has no influence on the application of the customs legislation.
In particular, Pham Huang was arrested in Paris for complicity with a group dealing with drug importation. The police withdraw almost three kilograms of heroin and five kilograms of caffeine from his companions. During the trial the defendant claimed that he new nothing about the carried out operations. Nevertheless, the French Court found him guilty and stated that during the consideration of the customs offences intentions do not matter.
The European Court of Human Rights (ECHR) also didn't find any violation of rights of the convicted for the just consideration of the case. "Presumption of his responsibility was not irrefutable. Mr Pham Huang was not actually deprived of means of defending himself and could try to confirm that he had acted out of necessity, or as a result of an inevitable mistake", – stated the Strasbourg servants of Justice.
Note
104.6 thousand people were convicted of illegal actions with narcotic and psychotropic substances in 2017, including 72 thousand cases which were considered in a special order (defendants pleaded guilty on all issues). 53 people were acquitted, 16 criminal cases were dropped due to rehabilitation circumstances.
On average, for the last ten years annually 107 thousand people are convicted of such crimes, 44% are sentenced to real imprisonment and 38% are given suspended sentences, while 12% are sentenced to public works or a fine.
Opinions
Sergey Tokarev, partner, head of the Advocatory Bureau "Torn" criminal practice
In criminal proceedings over illegal circulation of narcotics existence of a direct intent belongs to the circumstances which must be proved. At the same time, in the current judicial-investigative practice a guilty person does not have to be necessarily conscious that a particular remedy (substance) is included in the list of substances that are to be under control in Russia. A general idea that the remedy belongs to narcotics and the substance is psychotropic, is enough. Thus, in practice the investigation and the courts are extremely skeptical of a defendant's statements about having no idea that the transported substance related to the banned ones. So, such testimony is believed to be the position of a defence and an attempt to avoid punishment.
Therefore, it's better to make sure beforehand that unknown powders, blends, tees and drinks on offer are not restricted in circulation in Russia. Consequently, it is necessary to get documents proving composition of the obtained substances, and consult specialists on the country of temporary residence, guides, representatives of tour agencies, lawyers etc, and also become acquainted with the list of banned substances itself.
It's highly recommended not to buy anything in the street, without trade documents, receipts, and be misled by the sellers' assurances that everything is legal. In any case don't buy doubtful goods at the request of your friends. And never take anyone else's luggage in the airports in order to compensate overloading to unfamiliar people.
Aleksey Dobrynin, partner, head of the attorneys at law Pen & Paper criminal-legal practice
Corpus delicti is formed by the corresponding deliberate actions – keeping, transportation, obtaining or importing narcotic or psychotropic substances, and their amount. According to the law, a person who obtained a medicine somewhere abroad can't be subject to criminal responsibility if he/she didn't know that the medicine contained narcotic substances. There is no subjective component in this case, and actions of such people do not make the element of crime.
Nevertheless, in practice the court is not interested whether a person knew that he/she was buying or transporting some stuff mentioned in the list of narcotic substances, and, as a rule, brings this person to criminal responsibility despite the absence of an intent to commit a crime.
Joanna Shcherbakova, legal firm "Iliashev and Partners"
Making legal purchases of medicinal remedies or some other products while being abroad a law-abiding person should realize that they may contain substances banned in Russia. If narcotic substances are supposed to be medicinal remedies, one must be prepared to produce a certificate or a doctor's prescription at the customs. The amount of such medicines is limited, and they are to be declared.
At the same time, when carrying out an investigation into a criminal offense connected with drug trafficking, the state must prove the presence of a direct intent on the part of a defendant, that he/she realized that his/her actions posed a public menace, foresaw the possibility or inevitability of socially dangerous consequences of his/her actions and wanted them to come true.