Part 2 art. 228 of the Criminal Code of the Russian Federation, can they give a sentence of up to 3 years, or only from 3? Plus 2 months of unserved sentence.

What is Article 228 of the Criminal Code of the Russian Federation about?

Article 228

provides punishment for the illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs, psychotropic substances or their analogues, as well as plants or their parts containing these substances (hereinafter referred to as narcotic drugs).

Article 228.1

(she was charged with Ivan Golunov) - for the production, sale or transfer of narcotic drugs.

Article 228.2

— for violating the rules of drug trafficking.

Article 228.3 and 228.4

- for the illegal acquisition, storage, transportation, production, sale or transfer of drug precursors (that is, substances used to manufacture drugs).

In addition to Article 228 with all its parts, penalties related to drug trafficking are contained in Articles 229–233 of the Criminal Code.

The Code of Administrative Offenses also provides for administrative penalties for drug-related crimes. In particular, illicit trafficking in narcotic and psychotropic substances (Article 6.8 of the Administrative Code), propaganda of narcotic drugs (6.13), consumption in public places (20.20).

Administrative liability for possession of narcotic drugs

Administrative punishment in the form of a fine or arrest is applied if the detainee can prove regular use of narcotic substances or psychotropic medications without a doctor’s prescription. The point is ambiguous, because a drug-addicted citizen still purchases, transports and temporarily stores drugs for personal use, which can already be qualified under Part 1 of Article 228 of the Criminal Code of the Russian Federation. The Criminal Code provides for punishment both for the paid acquisition of narcotic drugs (money or services) and for free receipt.

The only exception that exempts you from liability for possession of narcotic or psychotropic drugs is the purchase as prescribed and with a prescription from a doctor. Medical history, prescription, and other medical documents are used as evidence. Even for personal use, there are permissible limits, exceeding which is punishable by Article 228. The degree of guilt and punishment is determined by the court.

What punishment does violators face?

For the acquisition, storage, production of narcotic drugs without the purpose of sale (Article 228)

punishment is provided (depending on the size of the seized substances):

*in this case, imprisonment is not mandatory, but only one of the possible punishments

For illegal production and sale of drugs (Article 228.1)

The Criminal Code of the Russian Federation provides for imprisonment for up to 20 years, in exceptional cases up to life imprisonment.

Additionally, it is possible to impose a fine of up to 1 million rubles, restriction of freedom, deprivation of the right to hold certain positions or engage in certain activities.

The Criminal Code provides for exemption from criminal liability for the illegal acquisition, storage, transportation, manufacture and processing of drugs or precursors for persons who voluntarily surrendered these substances and actively contributed to the disclosure or suppression of crimes related to drug trafficking, the exposure of those who committed them, and the detection property obtained by criminal means. Illegal production and sale of narcotic substances or precursors (Articles 228.1 and 228.4) do not provide for exemption from liability.

Is it possible to avoid responsibility?

How to avoid paying fines and getting arrested for drug use? The easiest way is not to let any “nonsense” into your life. If a person is already familiar with psychoactive substances or has even become dependent, there is only one way out - treatment. The main problem with drug abuse is that it is almost impossible to get off on your own or even with the help of loved ones. Often, such attempts use either untested folk remedies or inappropriate medical remedies. And even if something works out on the physical level (and without any guarantees), only a competent medical specialist can provide full-fledged psychotherapeutic assistance.

For your information:

Conscious and high-quality treatment (for example, according to the 12 Steps program for getting rid of addictions) can banish drugs from a person’s life forever

The law treats all people who seek drug treatment with understanding. This is evidenced by the note to Article 6.9 of the Code of Administrative Offenses (it also applies to other “narcotic” articles of the code). The note refers to people who themselves turn to doctors in order to recover from drug addiction or agree to such treatment when their case is considered by the court. In this case, the violator is not held accountable in any way - he is not fined or arrested.

How is the size of drugs determined?

Significant, large and especially large sizes of narcotic substances and plants containing narcotic substances are approved by government decree No. 1002 of October 1, 2012.

For example, N-methylephedron and its derivatives, the sale of which Ivan Golunov was accused of selling, in large quantities corresponds to more than 1 g of the substance.

Determining the size of illegal drugs in criminal prosecution

(grams over)

According to a study by the Institute for Law Enforcement Problems, “Map of Drug Crimes in the Russian Federation,” as of 2014, the most frequently seized drugs by law enforcement are cannabinoids, heroin and amphetamines.

You can view the map here.

What substances are subject to administrative or criminal liability for possession?

Possession of narcotic drugs implies possession of a wide range of drugs or medications. It is important to understand that liability comes not only for the possession of drugs themselves, but also for the possession of their analogues and precursors. The list prohibited by law includes medications with narcotic or psychotropic effects, plants and plant components containing prohibited chemicals.

The list of the most common narcotic substances includes plants (hemp, opium poppy, marijuana), as well as hashish, amphetamine, heroin, cocaine, ecstasy, LSD and other compounds.

What do judicial statistics say?

According to the Judicial Department of the Supreme Court of the Russian Federation, every seventh sentence in the Russian Federation is passed under Article 228

. Thus, in 2021, 658.3 thousand people were convicted under all elements of the Criminal Code of the Russian Federation, of which Article 228 with all its parts accounted for 13.4% of all sentences. For comparison: a year earlier the share was 14.3% (total number of convicts - 697 thousand), in 2014 - 15.2% (out of 719.3 thousand). If we take all drug-related charges, then a quarter of all prisoners are imprisoned under them.

The most widespread is Article 228 (acquisition and possession without the purpose of distribution), which in 2021 accounted for 79% of all sentences (69.6 thousand). Drug sales (228.1) account for 21% of convictions.

The majority of those convicted are young people (age group from 18 to 29 years).

The most common sentence for drug-related crimes is imprisonment for 3-5 years. At the same time, only 0.3% of criminal cases end in release from punishment.

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Art. 72.1 of the Criminal Code of the Russian Federation gives the court the opportunity to oblige the convicted person to undergo drug addiction treatment (if the main punishment is not related to imprisonment). In Art. 82.1 provides for the opportunity for a person sentenced to a real term to voluntarily undergo treatment for drug addiction with a deferred sentence.

Sales forms

Sales is the transfer of drugs by absolutely any means to another person. This is sale, donation, exchange, payment of debt, lending, etc.

It doesn’t matter whether it is for money or just like that, the transfer is carried out “as a gift”. The method of transmission also does not matter - it can be direct transmission, “planting” in a designated place and subsequent “finding”, it can even be an injection of a drug under certain conditions (clause 13 of the Resolution of the Plenum of the Supreme Court of June 15, 2006 N 14)

A frequent question in specific cases is that the accused did not receive any benefit from the sale, did not acquire any wealth - what kind of drug dealer is he? This - any, even a single and gratuitous transfer of any amount of a drug under any circumstances turns the accused into a drug dealer.

This is important: any transfer of any quantity is a sale. If at a technical level it was possible to prove the transfer of one molecule of a drug, this would also be a sale.

It is very easy to push people into sales even if the “sales person” has never done or planned anything like this. Read more about provocation here: https://www.9111.ru/questions/777777777372047/.

Features of law enforcement

The 2021 report by the Institute for Law Enforcement Problems, “Drug Crimes in Russia: Analysis of Judicial and Criminal Statistics,” notes that consumers in Russia are persecuted more often than distributors

. The authors identified “artificial distortion of the masses of seized drugs by law enforcement agencies.” “The quantities of marijuana and hashish most often seized from drug users are just sufficient to qualify the offense as a criminal offense, and these quantities do not significantly exceed the significant amount required to initiate a criminal case,” the report says.

Alexey Knorre, “Drug crimes in Russia: analysis of judicial and criminal statistics”

Alexey Knorre, “Drug crimes in Russia: analysis of judicial and criminal statistics”

Researchers call a separate problem the fact that “law enforcement officers understand a drug not as a pure narcotic substance found in a mixture, but as the entire mixture.

A sociological view of drug crime statistics

According to Alexei Knorre, an expert at the Institute of Law Enforcement Problems of the European University, there are no official statistics on bringing law enforcement officers to justice for falsifying drug cases. However, content analysis of the media over the past 5 years has revealed approximately 500 cases in which a law enforcement officer was detained, arrested, or convicted of drug-related fraud.

READ / High-profile verdicts under Article 228 of the Criminal Code of the Russian Federation

November 23, 2010, during searches in the house of Taisiya Osipova,

found nine grams of heroin.
On December 29, 2011, the Zadneprovsky District Court of Smolensk sentenced her to 10 years in prison
(Part 3 of Article 228.1). On February 28, 2021, she was released on parole.

On January 29, 2013, Sergei Reznikov, a member of the territorial election commission of the Prospekt Vernadsky district from the Communist Party of the Russian Federation and a regular participant in protests, was detained in Moscow.

During the arrest, the police found several grams of cocaine on the communist, but he did not admit his guilt.
On March 6, 2021, the Nikulinsky District Court sentenced him to three years in prison
(Part 2 of Article 228). He was released on November 20, 2021 after the Ryazan Regional Court replaced the remaining sentence with a fine of 350 thousand rubles.

February 20, 2014 President of the “Assembly of Peoples of the Caucasus” Ruslan Kutaev

was taken into custody in the Chechen village of Gekhi on suspicion of illegal possession of three grams of heroin.
On July 7 of the same year, he was sentenced by the Urus-Martan City Court to four years in prison
(Part 2 of Article 228). He was released on December 20, 2017.

On April 15, 2021, journalist Zhalaudi Geriev was detained on the way to the Grozny airport.

He was accused of possessing and transporting 168 grams of marijuana.
On September 5 of the same year, the Shali City Court sentenced him to three years in prison
(Part 2 of Article 228). On April 30, 2021, he was released.

On January 9, 2021, in Chechnya, traffic police officers stopped the car of the head of the Grozny representative office of human rights activist Oyub Titiev.

A bag containing 180 grams of marijuana was found in his car.
The human rights activist himself did not admit his guilt, saying that the drugs were planted on him. On March 18, 2021, the Shali City Court of Chechnya sentenced him to four years in prison
(Part 2 of Article 228 of the Criminal Code of the Russian Federation). On June 10 of the same year he was released on parole.

international experience

Penalties for drug crimes vary greatly. Particularly in Singapore

one of the strictest laws on the planet.
It is illegal to possess, consume, produce, trade, regardless of quantity. Punishments - up to the death penalty. On the other side of the world are Denmark and the Netherlands
, where drug use is not criminalized at all.

IN THE USA

drug crimes are regulated by federal and state laws. In most states, it is not the use of drugs that is a criminal offense, but the possession of drugs. Sentences with a prison term are threatened for possession in large quantities and sale. For fiscal year 2021, the majority (95.6%) of those convicted of drug trafficking received prison sentences, according to the U.S. Sentencing Commission. The average period is 70 months (about 6 years). The average age of the offender at sentencing is 36 years. The most common drugs in the United States are methamphetamine and cocaine. Today, 45% of prisoners in American prisons are serving sentences for drug-related crimes.

Marina Bocharova, Artem Kosenok, Mikhail Malaev, Olga Shkurenko

What can serve as a mitigating circumstance for drug possession?

It should be taken into account that any case of use, illegal storage or transportation of drugs and psychotropic substances is considered by the court on an individual basis. The social status of the accused, the degree of his guilt, the circumstances in which the crime was committed, the degree of repentance for his actions, his willingness to help the investigation and many other factors must be taken into account.

When determining mitigating factors, courts are guided by Articles 61, 62, 64 of the Criminal Code of the Russian Federation. If there are circumstances in the case that can be qualified as mitigating under the Code of Criminal Procedure, the defendant can count on a maximum reduction of the sentence down to below the minimum level (in legal practice the definition of “less than less” is used). In order to count on mitigating circumstances in a case, it is important to promptly attract an experienced defense attorney who can prove in court:

• The defendant has previously been law-abiding, if he has violated the law for the first time and has not previously been prosecuted;
• The presence of young children or other dependents;
• Pregnancy;
• Failure to reach the age of majority at the time of committing the crime;
• Committing a crime under duress or threat to life and health;
• The presence of difficult life circumstances that forced the defendant to take illegal actions;
• Presence of a serious illness at the time of the preliminary investigation or court hearing;
• A sincere desire to assist the investigation and make amends for the harm caused;
• Confession;
• Compensation for damages to the injured party.