Substances dangerous to public health according to the Criminal Code of 1922 and 1926: comparative legal analysis and criminal law regulation

Kukharuk Vladimir Vasilevich PhD in Law Assistant professor, The All-Russian State University of Justice (RLA of the Ministry of Justice of Russia) 410056, Russia, Saint Petersburg, V.O. str., 10th line,, d. 19 lit. A kukharuk@yandex.ru Other publications by this author

Standard-setting activities aimed at improving criminal legislation on liability for illegal actions with drugs and other substances with generally dangerous properties continue to be one of the priorities for the implementation of state policy in the field of public health safety and well-being. As a rule, the legal need for such activities arises with a consistently positive dynamics of registered drug crimes, which in many ways allows us to assume that the deterrent potential of the current norms, expressed in the sanctions of the articles, has ceased to provide the required level of law-abiding behavior. Such a development of the drug situation often orients the legislator to unjustifiably increase the severity of punishment for what he has done, counting on the refusal to repeat such acts and, as a result, changes in the current and predicted state of drug crime.

Meanwhile, as the history of the formation of the criminal law institute of public health safety testifies, such an established algorithm of state regulation of complex social phenomena has not always been considered as an effective means of achieving public order. On the contrary, despite the extremely high level of drug use in the first post-revolutionary years, the punishability for encroachment on a protected good was provided for by the norms of the first Criminal Code of the RSFSR, in contrast to the incomparable punitive severity of the sanctions of the current criminal law. In this regard, it is difficult to understand the logic of the continued construction of modern criminal law norms based on the so-called remnants (branches) of the Soviet period, the social meaning of which can be understood only in the context of their past legal significance, but not the present ^{[1, p. 13]}..

I. The first Criminal Code of the RSFSR of 1922 considered only two types of substances dangerous to public health – potent and poisonous (approx. – all the selections in the text are made by the author) (resolution of the Central Executive Committee on the enactment of the Criminal Code from 06/01/12 // Collection of legalizations and orders of the RCP of the RSFSR. 1922. No. 15. St. 153). Drugs or narcotic drugs that had independent regulatory regulation were not recognized as such, which was largely due to legal continuity with the legislation of pre-revolutionary Russia. After all, even the Code on Criminal and Correctional Punishments of 1845, the norms of Chapter IV "Violation of the rules on the internal structure and management of pharmacies" established punishment for failure to observe due care with potent and poisonous substances (Article 1098 of the Code on Criminal and Correctional Punishments. In the printing House Of The Second Department Of His Imperial Majesty's Own Chancellery. St. Petersburg, 1845).      

Criminal liability for illegal actions with these substances was provided for in Article 215 of Chapter VIII "Violation of the rules protecting public health, public safety and public order", according to which "the preparation of poisonous and potent substances by persons who do not have the right to do so is punishable by a fine of up to 300 rubles in gold or forced labor." The above-mentioned rules, in particular, were formulated in the "Instructions on the right to open and manufacture trade in medicines", approved by the decree of the People's Commissariat of Health of the RSFSR of July 7, 1922 (Resolution of the People's Commissariat of Health of the RSFSR of 07.07.1922 "Instructions on the right to open and manufacture trade in medicines" // Collection of laws of the RSFSR. 1922. No. 54. St. 678).

Also, by his decree of November 13, 1922, it was established that non–compliance with this Instruction, expressed in the release of medicines or preparation of medicines outside pharmacies, was subject to qualification under Article 139 of the Criminal Code - purchase and sale in the form of fishing of products, materials and products for which there is a special prohibition or restriction (decree of the People's Commissariat of Health of the RSFSR of 11/13/1922 "On the addition and amendment of the Instruction on the right to open and manufacture trade in medicines" // Collection of laws of the RSFSR. 1923. No. 2. Article 25).

Subsequent amendments made by the decree of the Central Executive Committee of the RSFSR of 07/10/1923 criminalized the storage and sale of these substances (resolution of the Central Executive Committee of 07/10/1923 "On Amendments and Additions to the Criminal Code of the RSFSR" // Collection of legalizations and orders of the RCP of the RSFSR. 1923. No. 48. St. 479) and changed the name of one of them the types are "strongly acting" ^[2].

At the same time, narcotic drugs, which were defined as a special kind of "potent drugs that serve or can serve for various types of intoxication, having a destructive effect on public health (cocaine and its salts, opium and its derivatives, such as morphine, heroin, etc.)" were not recognized as the subject of a crime (Decree of the Council of People's Commissars of the R.S.F.S.R. dated November 6, 1924 "On measures to regulate the trade in narcotic drugs" // SU RSFSR. 1924. No. 85. St. 867). Meanwhile, the ever-increasing level of drug addiction was caused by the use of these particular drugs, the illicit trafficking of which continued to remain outside the criminal law ban. M.N. Gernet, describing the current situation, noted: "the spread of drug addiction, and especially in the form of cocaine, took on the most threatening proportions everywhere" ^{[3, pp. 39-46]}.

In order to fill this gap, the Decree of the Central Executive Committee and the Council of People's Commissars of the RSFSR dated 12/22/1924 "On Supplementing the Criminal Code of the RSFSR Article 140-d" and its inclusion in Chapter IV "Economic crimes" introduced responsibility for "the manufacture and storage for the purpose of marketing and the very sale of cocaine, opium, morphine, ether and other intoxicating substances, without proper permits", which "were punishable by imprisonment for up to three years with or without confiscation of part of the property and with prohibition of residence in Moscow, Leningrad, in the border strip and in port cities, the list of which is established by agreement of the People's Commissariat of Internal Affairs and the People's Commissariat of Justice, for a period not exceeding three years.

The same crime committed in the form of fishing, as well as the maintenance of dens in which the sale or consumption of cocaine, opium, morphine and other intoxicating substances are carried out, is punishable by imprisonment for a term of at least three years with strict isolation, confiscation of all property, loss of rights and prohibition of residence while serving a sentence in the border zone and in the cities mentioned above for up to three years." (Collection of laws and regulations of the Russian Communist Party of the RSFSR. 1925. No. 5. Art. 33.10).

The decision to include the crime in this particular chapter, it seems, was due to the peculiarities of the mechanism of harming people's health – by encroaching on the economic relations that developed in the sphere of trade turnover of the substances specified in the article. The turnover of such substances was carried out, in particular, on the basis of the prescriptions of paragraphs 3-6 of the decree of the People's Commissariat of Health of the RSFSR dated 06/13/1923 "On the procedure for the release and accounting of opium, cocaine, morphine and their salts", which established that the release of substances from pharmacies could be carried out exclusively according to prescriptions of doctors with their signature and seal in an amount not exceeding the established: opium – 0.5 grams, morphine and cocaine – 3 decigrams (Electronic resource]. – Access mode: http://homlib.com/read/dokumenty-1921-1928/1923-06-13-o-poryadke-otpuska-i-ucheta-opiya-kokaina-morfiya-i-ih-soley/1).

Conclusion I.

1) During the period under review, legal science and medicine had a sufficiently developed arsenal of conceptual means of describing illicit trafficking and the consequences of using substances that pose a danger to public health – narcotic drugs, narcotic poisons, drugs, narcosis, drug addiction, morphinism ^{[3, pp. 39-46]}. However, the concept of narcotic drugs as a legislative category entered the Criminal Code only in 1987. The concept of narcosis, which acted as a lexical means of expressing an extremely destructive socio-legal phenomenon, acquired normative significance at least in 1988 in departmental documents of the Ministry of Internal Affairs of the USSR (Organizational and tactical issues of drug prevention (methodological recommendations). – M.: GUUR of the Ministry of Internal Affairs USSR, 1988). Around the same time, when the trend of exponential growth in the level of narcosis of society became apparent, this concept unexpectedly gained widespread use in the scientific literature. Moreover, as a result of independent scientific activity, which led to the appearance of a previously unknown neologism. In fact, the substantial development of this concept was provided by the works of scientists of the pre–revolutionary school - Tereshkovich L.M., Vvedensky N.I., Zinoviev N.M., Sholomovich A.S.

2) The legislator, taking into account the potential for the development of science and unlimited possibilities in the field of chemical synthesis, believed that the list of intoxicating substances should be considered open, referring to any substances whose qualitative characteristics and actual use corresponded to the literal meaning of their names (to stupefy, "see  to stupefy – to fog the mind, to intoxicate" ^{[4, pp. 186, 445]}).

Currently, the content of intoxicating substances, contrary to the continuing conceptual inertia of criminal legislation and due to far-fetched ideas about their formal legal nature, has turned out to be blurred and devoid of criminal legal certainty. It means that the now–defunct Standing Committee on Drug Control under the Ministry of Health of the Russian Federation (hereinafter - PKKN), having misinterpreted the criminal law norm of Article 23 of the Criminal Code of the Russian Federation (commission of a crime in a state of intoxication caused by the use of other intoxicating substances), Protocol No. 51/7-96 dated 09.10.1996 for the first time endowed these substances with a formal legal sign having approved their final list of 9 names (Criteria and lists of psychotropic substances, intoxicating substances, large and especially large quantities of narcotic drugs and psychotropic substances found in illegal storage or trafficking (approved by the Ministry of Health of the Russian Federation). Standing Committee on Drug Control // Bulletin of the Supreme Court of the Russian Federation. ¹ 3. 1997).

In the last edition of 2005, their list included 12 items (List of intoxicating substances (as of November 1, 2005) (approved Standing Committee on Drug Control, Protocols dated 09.10.1996 No. 51/7-96, dated 04/22/1998 No. 2/64-98, dated 04/14/1999 No. 2/71-99, dated 04/13/2005 No. 2/98-2005) // New Pharmacy. No. 6. 2006).

Despite the fact that such substances from the approved list are unknown to law enforcement practice and the highest judicial authorities deny their formal legal significance (Ruling of the Supreme Court of the Russian Federation dated January 21, 2014 No. 72-APU13-63), textbooks and commentaries on criminal and administrative legislation continue to be classified as subjects of crimes for more than two decades, Article 151 Criminal Code (involving a minor in the systematic use of intoxicating substances) and related offenses, a group of substances that does not exist in Russian legislation.

3) The first Soviet legislator considered the concept of potent substances generic in relation to all substances, the defining property of which was the intensity of their effects on the body. It was equally used to designate the subject of the crime and the type of substances based on the literal content of their essential feature, manifested, among other things, with the conscious use of substances. "Potent – having a strong effect on someone or something" ^{[4, pp. 186, 445]}.

Based on this feature, narcotic drugs were considered potent substances, which, due to the functional characteristics of socially dangerous properties, were named "intoxicating" in the criminal Code – in accordance with the psychophysiological effect that occurs when they are used.

Subsequently, with the approval of the international legal type of psychotropic substances, the list of potent substances was supplemented with these substances. Currently, these substances (Articles 234 of the Criminal Code) include substances prohibited for use in sports (Articles 230.1, 230.2 of the Criminal Code), which do not have independent criminal law regulation as the subject of a crime.

II. With the adoption of the Criminal Code of the RSFSR in 1926, the editorial board of the articles in question was mostly preserved, only their numbering changed. Thus, Article 140-d of the Criminal Code of 1922 was renamed to Article 104 of the Criminal Code and placed in chapter II "Crimes against the order of government" in the following content:

"manufacture and storage for the purpose of marketing and the sale of cocaine, opium, morphine, ether and other intoxicating substances without proper authorization -

imprisonment or forced labor for up to one year with or without confiscation of part of the property.

The same actions performed in the form of fishing, as well as the maintenance of dens in which the sale or consumption of the substances listed in this article is carried out, -

imprisonment with strict isolation for up to three years with confiscation of all property" (resolution of the Central Executive Committee of 11/22/1926 "On the enactment of the Criminal Code of the R.S.F.S.R. edition of 1926" (together with the "Criminal Code of the R.S.F.S.R.") // SU RSFSR. 1926. No. 80. St. 600).

These substances as the subject of crimes in the educational literature were often referred to as narcotic or narcotic drugs, which did not contradict the terminology accepted in science ^{[5, p. 344]}.

By the resolution of the Central Executive Committee of the USSR, the Council of People's Commissars of the USSR of 05/23/1928, the list of substances prohibited for free circulation within the USSR was expanded to include cocaine, its salts, hashish, opium, morphine, heroin, dionin and their salts and pantopone (resolution of the Central Executive Committee of the USSR, the Council of People's Commissars of the USSR of 05/23/1928 "On measures to regulate the trade in narcotic drugs" // Collection of legislation of the USSR. 1928. No. 33. St. 290).

At the same time, the resolution of the Central Executive Committee, the Council of People's Commissars of the RSFSR dated 05/20/1930 "On amending Articles 20, 28, 35 and 56 of the Criminal Code of the RSFSR" the sanction of the article for illegal actions with these substances was mitigated by applying punishment without "strict isolation" (resolution of the Central Executive Committee, the Council of People's Commissars of the RSFSR dated 05/20/1930 "On amending Articles 20, 28 35 and 56 of the Criminal Code of the RSFSR" // SU RSFSR. 1930. No. 26. St. 344).

In turn, Article 215 of the Criminal Code of 1922 became designated as Article 179 of the Criminal Code and was included in Chapter VIII "Violation of the rules protecting public health, public safety and order."

According to this article, "the preparation, storage and sale of highly active substances by persons who do not have a special permit entails -

forced labor for a period of up to six months or a fine of up to one thousand rubles" ^[6] (resolution of the Central Executive Committee of 11/22/1926 "On the enactment of the Criminal Code of the R.S.F.S.R. edition of 1926" (with amendments and additions made by the Resolutions of the Central Executive Committee of the USSR of 02/19/1926 - SZ USSR, 1926, N 9, Article 71; dated 03/05/1926 - USSR Civil Code, 1926, N 15, Article 106). [electronic resource]. – Access mode: http://rubitnet.ru/USSR/Normative-legal-acts-of-the-USSR/ussr_3132.html ).

Such clarification of the subject of the crime (by excluding toxic substances), according to Fedorov A.V., was due to the fact that toxic substances were considered as part of potent substances in their broad sense ^[7]. However, it is impossible to agree with this point of view, since subsequent innovations, on the contrary, confirm the legislator's desire to streamline the terminological diversity of meaningfully similar concepts by rejecting an independent category of potent substances.

Thus, by the resolution of the Central Executive Committee, the Council of People's Commissars of the RSFSR dated 06/01/1936 "On the amendment of Article 179 of the Criminal Code of the RSFSR" the article was presented in a different version with a new subject of crime:

"the manufacture, storage, purchase and sale of highly toxic substances without special permission, as well as violation of the established rules for the production, storage, release, accounting and transportation of highly toxic substances is punishable by imprisonment for up to five years with confiscation of the said substances."

Resolution of the Council of People's Commissars of the USSR No. 78 dated 01/26/1938 "On the procedure for the production, sale and release, storage, accounting and transportation of highly toxic substances" identified 13 items in the list of these substances and their salts (strychnine; cinchonin; salts of prussic acid, etc.).

The specified resolution of the Council of People's Commissars of the USSR continued to remain in force for 82 years until the approval of the Decree of the Government of the Russian Federation dated 02/03/2020 No. 80 "On the recognition of Acts of the USSR and their Individual Provisions not valid on the territory of the Russian Federation" (Collection of Legislation of the Russian Federation. 02/17/2020. No. 7. St. 825).

According to some authors, the change in the wording of the subject of the crime was explained by the accidental omission of the word "or" " between the terms "strongly acting" and "poisonous" substances" ^{[8, p. 415]}. In turn, V.S. Orlov believed that the law in this case "punishes the manufacture, storage and sale of not every strongly active substance, but only with active poisons." Otherwise, "there would be no need to provide in a separate article (Article 104 of the Criminal Code of the RSFSR) as an independent crime the manufacture, storage and sale of some of the substances (for example, ether, opium, etc.) included, according to the relevant rules, in the group of strongly acting" ^{[9, p. 443]}.

Menshagin V.D. attributed these crimes to special types of disobedience to the authorities. Their special case, which is only the preparation of materials necessary for the manufacture of highly toxic substances, was proposed to consider "the production of opium poppy and Indian cannabis crops without appropriate permission" (Article 179-a of the Criminal Code of the RSFSR) ^{[10, p. 408]}.

However, during the subsequent reform of the Criminal Code, the concept of highly toxic substances turned out to be not in demand. It was developed only in the sectoral legislation regulating the turnover of substances with socially dangerous properties, referred to as SDYAV.

In particular, currently approved by the order of Roskompechat dated 08/24/1994 No. 75 "POT RO 29-002-94. Labor protection rules for publishing houses". Thus, paragraph 5.9.11.11 of the order provides that "highly toxic substances (SDS) should be stored in strict accordance with the "Instructions on the procedure for the sale, purchase, storage, accounting and transportation of highly toxic substances" (No. 247-68).

Substances that possess a similar complex of socially dangerous properties and are widely used in various industries and other activities are subject to strict turnover control measures, including in order to exclude the possibility of their illegal use. An example of how socially dangerous illegal actions with such substances can be is the following Decree of the Presidium of the Supreme Soviet of the USSR, adopted based on the materials of one of the verdicts (Decree of the Presidium of the Supreme Soviet of the USSR "On the non-application of the Decree of the Presidium of the Supreme Soviet of the USSR dated March 27, 1953 "On amnesty" to the convicted Mayranovsky Grigory Moiseevich". [electronic resource]. – Access mode: http://istmat.info/node/22362 ).

On February 14, 1953, Grigory Moiseevich Mayranovsky, former head of the toxicological laboratory of the MGB of the USSR, born in 1899, colonel of the medical service, former member of the CPSU (a native of the Bund), was sentenced to prison for 10 years for abuse of office and illegal possession of potent substances (Articles 193-17 of paragraphs "a" and 179 of the Criminal Code of the RSFSR).).

The investigation found that Mairanovsky, working on the production, testing and use of poisons and narcotic drugs for operational purposes, appropriated various medicinal and potent substances belonging to the laboratory, and in this regard committed neglect and gross violations of the rules for the storage of these substances.

During a search of Mayranovsky's apartment, 2 kg of sodium nitrate (a lethal dose of 3-4 grams), 10 lethal doses of aconitine, 25 ampoules of strychnine, etc. were found. poisons, as well as several thousand hypnotic doses of potent substances. In addition, when Mayranovsky was arrested, top secret documents about the work of the laboratory that he had not handed over were found in his office at his new place of work (Kuchino station, facility No. 1 of the Department of Opertechnics).

Without denying the illegality of storing poisons and secret documents, Mayranovsky testified that he did not set himself the goal of using the poisons stored in his possession to commit crimes.

In connection with the exposure of the treasonable and conspiratorial activities of Beria and his accomplices, the investigation again checked the official activities of Mayranovsky.

It has been established that the doctor Mayranovsky, who was hired in 1937 to work in the NKVD, at the suggestion of Beria and Merkulov, organized and equipped special rooms of a highly secret and toxicological laboratory in 1938, where, on the orders of the named enemies of the people, he carried out inhuman tests of various deadly poisons on those sentenced to capital punishment.

For a number of years, Mairanovsky destroyed in a painful way a large number of such convicts, whose identity the investigation failed to establish, since Beria and Merkulov, providing Mairanovsky with "test objects", hid information about their identity.

Mairanovsky testified that he did not know who exactly he was destroying by using poisons, and in this regard, the order of Beria or Merkulov was sufficient for him.

In addition, Mayranovsky tested various narcotic substances on the arrested in order to obtain allegedly truthful testimony ("the problem of frankness").

At Merkulov's request, Mairanovsky was awarded the title of professor and the degree of Doctor of Medical Sciences without defending his dissertation.

The investigation did not establish that Mayranovsky knew about the treasonable and conspiratorial activities of Beria and his gang, but was only the executor of the tasks of Beria and Merkulov.

Thus, Mayranovsky cannot be prosecuted as an accomplice in the conspiratorial activities of Beria and Merkulov, and he is subject to release from serving the sentence imposed on him in 1953 by virtue of the amnesty act of March 27, 1953.

Given Mayranovsky's connections with the exposed enemies of the people Beria and Merkulov, his performance of particularly confidential tasks of these persons and the social danger of Mayranovsky as a person who performed inhuman experiments on living people, I would consider the effect of the Decree of the Presidium of the Supreme Soviet of the USSR of March 27, 1953 on amnesty for the convicted Mayranovsky Grigory Moiseevich not to be extended and limited to serving the sentence imposed his sentence.

Conclusion II.

1) Despite the substantial homogeneity of the socially dangerous consequences of illegal actions with these substances in the form of harm to the health of an indefinite circle of persons, the legislator considered the immediate objects of such actions to be heterogeneous. This decision was determined by the characteristics of the generally dangerous properties of substances, which determined the nature and mechanism of harm to the protected good.

The substances of the first type included poisonous and potent substances (sodium nitric acid, etc.), which had wide national economic significance (medicine, agriculture, industry, etc.). The prohibition on committing "without special permission" ("without having the right to do so") actions with such substances was due to the fact that violation of the rules for handling them could lead to unintentional ingestion of substances into the body of many people, thereby creating a massive threat to their life and health ("people's health") (Article 215 of the Criminal Code).

Substances of another type formed intoxicating substances, the open list of which consisted of specifically named narcotic drugs (cocaine, opium, morphine, etc.) and their salts. The public danger of these substances consisted in a variety of socio-legal consequences of violating the rules of their trade, aimed at conscious, "without proper permission", their non-medical consumption in order to change their own psychophysiological state (intoxication).

Thus, the generic object of crimes against potent and poisonous substances was the health of the population (national health), in relation to intoxicating substances – the management procedure (business relations under the Criminal Code of 1922),

According to the current Criminal Code, the object of crimes against potent and poisonous substances, as well as substances used for non–medical consumption (intoxication), is a single one - public health (Chapter 25 of the Special Part of the Criminal Code of the Russian Federation). However, of the 5 types of such intoxicating substances, including potent, psychotropic and narcotic drugs, 2 of them are analogues of narcotic drugs and psychotropic substances, as well as new potentially dangerous psychoactive substances, belong to the subjects of crimes, the norms of which are "dead" (Articles 228, 228.1 and 234.1 of the Criminal Code).

2) The norms of the first criminal codes considered the public danger of illegal actions with intoxicating substances as insignificant.

According to the current Criminal Code, illegal actions with substances used for non-medical consumption (intoxication), according to the degree of public danger, are equated to murder, terrorism and other most serious crimes.

2.1) The latest amendments to the Criminal Code of 1926 established a greater public danger of illegal actions with potent and poisonous substances than with substances used for intoxication (narcotic drugs, intoxicating) – imprisonment for 5 years and 3 years, respectively.

In the present Criminal Code, the opposite relationship takes place. If the maximum penalty for trafficking in potent and poisonous substances provides for 8 years in prison, then similar actions with narcotic drugs are punishable by life imprisonment.

2.2) Despite fundamental changes in the social and state structure, as well as in the development of science and technology, the public danger of illegal actions with potent and poisonous substances continues to remain at the level of 1936.

The general conclusion.

A retrospective analysis of the studied criminal law prohibitions and the content of penalties for their violations when compared with the norms of the current criminal legislation on public health protection allows us to conclude the following:

1) the conceptual constructions of potent, poisonous and intoxicating substances, borrowed from the Code of Criminal and Correctional Punishments of 1845, by the very fact of their presence in the criminal law of the XXI century, serve as a normative obstacle to the development of the institute for public health protection based on the norms of international law;

2) while preserving the lexical anachronism of the XIX century and simultaneously implementing the current terminology of international law and natural sciences, it seems impossible to eliminate the conflicting ambiguity of the content of the subjects of the relevant crimes.