Article 228 of the Criminal Code sets forth the responsibility for the illegal transfer, sale (sale) or manufacture of narcotic, psychotropic substances and drugs or their analogues. A crime is also considered any of these actions with plants and their parts in which these compounds are present. This is the general composition of the act. It is provided in part one. Art. 228, part 2 establishes the qualifying signs of a crime. Let's consider them further.
Art. 228, part 2 of the Criminal Code
For acts that are recorded in the first part of the article under review, the guilty person can receive 4-8 years in prison. Moreover, the court has the additional right to limit the freedom of the convicted person for a period of up to a year. Art. 228, part 2 of the Criminal Code of the Russian Federation provides for two qualifying characteristics. If available, the sanctions for the crime are enhanced. In particular, in Art. 228, Part 2 of the Criminal Code, the liability is tightened if the transfer, sale or production of drugs (psychoactive) or psychotropic type (s), as well as plants or their parts in which these compounds are present, has been carried out:
- In the remand prison.
- In a building of administrative importance.
- In an educational institution.
- In public transport.
- In a correctional facility.
- At the facilities of the subway, inland water, sea, air, railway transport.
- In the sports complex.
- In rooms intended for leisure or entertainment.
Art. 228, part 2 includes an indication of a method of disseminating information that allows for the transfer, sale or production of narcotic / psychotropic substances / agents, wild cultures (parts of them) in which these compounds are present. The perpetrator will be held liable if these acts were committed using the media, information and communication or electronic networks, including the Internet.
Art. 228, part 2: sentence
For these acts also provides for imprisonment and restriction of freedom of the perpetrator. In addition, the court may impose a fine on the perpetrator. Thus, if an act of a person falls under Art. 228, part 2, the punishment includes 5-12 years in prison with restriction of freedom of the subject up to a year or without it. As for the fine, the perpetrator may be charged up to 500 thousand rubles. or an amount equal to his salary (other income) for a period of up to 3 liters.
Nature of the crime
The act for which liability is provided for in Art. 228, part 2, refers to socially dangerous. The factor that increases its degree is the direction of behavior, the serial production of psychotropic / narcotic substances or analogues of these drugs, plants (their parts), including these compounds, as well as their marketing and shipping. The crime described in part one is serious. Acts qualifying under Art. 228, parts 2 and 3, are recognized as especially serious. The subject of the crime are drugs and psychotropic substances and substances, plants containing them, analogues of these compounds.
Objective part
It includes the illegal manufacture, shipment, sale of prohibited compounds in public and specialized places. The latter, in particular, include pre-trial detention facilities and correctional facilities. The public danger of committing the acts in public places is determined by the presence in them of a large number of citizens, including children. Acts for which liability is established in Art. 228 are illegal. Their unlawfulness is manifested directly in their commission against the procedure for the legal circulation of these substances and means established in Federal Law No. 3.
Illegal production
By it is meant deliberate actions that are focused on the serial production of prohibited compounds of their chemical, plant and other substances. For example, manufacturing can be carried out on special equipment, in rooms adapted for this. Production may also include packaging of these substances. The criminal act is considered completed from the moment of completion of manufacture. At the same time, the actually received volume of psychotropic substances or narcotic drugs will not matter for the qualification of an act under this article.
Sales
Illegal sale is understood to mean any methods of gratuitous or reimbursable transfer of prohibited compounds to other persons. These include, but are not limited to, giving, paying off debt, exchanging, selling, lending, and so on. Sales also include such an implementation method as injection. It does not qualify as marketing such acts as:
- Disposal of prohibited means by leaving them in any place or throwing them in a landfill, in a garbage container and so on.
- Injecting another person if the substance belongs directly to the consumer.
- The acquisition of a crime subject by an intermediary in the amount commensurate with individual consumption, at the consumer’s expense, without obtaining the right to own substances, if the actions are aimed only at assisting in obtaining, but not selling.
Intent
An agreement with the consumer or other circumstances may indicate its presence. These include, for example:
- A large number of prohibited substances.
- Purchase for subsequent implementation.
- Specific packaging through which fast sales are ensured.
- Industrial production method.
- The acquisition by an entity that itself does not consume these funds.
The intention is expressed in the awareness of the social danger of the act committed and the desire to commit it.
Mediation
The action of the subject assisting in the commission of a crime is qualified as complicity, depending on whose interests they were. If the person selling the prohibited substances knows that the buyer will use them for other unlawful acts (for inducing the consumption of third parties, for example), then his behavior should be qualified as aiding to further illegal actions of the acquirer. The crime will be considered completed from the moment the prohibited item is transferred to another person. The form of transfer does not affect the qualification.