A differentiated approach of the legislator to criminal liability for the illegal movement of goods across the customs border of the EAEU or the State border of the Russian Federation

Khairullina Rezeda Gazinurovna ORCID: 0000-0002-7865-3146 PhD in Law Associate Professor; Department of Constitutional, Administrative and International Law; Naberezhnye Chelny Institute (branch) of the Federal State Educational Institution of Higher Education 'Kazan (Volga Region) Federal University' 423827, Russia, Republic of Tatarstan, Naberezhnye Chelny, Galiaskar Kamal blvd., 30, sq. 45 rezeda-x@mail.ru Ahmetov Adel' Railevich student; Higher School of Economics and Law; Naberezhnye Chelny Institute (branch) of the Federal State Educational Institution of Higher Education 'Kazan (Volga Region) Federal University' 423823, Russia, Republic of Tatarstan, Naberezhnye Chelny, Mira Ave., 17B, 714 aahmetov520@gmail.com

Shakirova Indira Abdulhakovna ORCID: 0000-0001-5556-0927 PhD in Law Associate Professor; Department of Constitutional, Administrative and International Law; Naberezhnye Chelny Institute (branch) of the Federal State Educational Institution of Higher Education 'Kazan (Volga Region) Federal University' 423823, Russia, Republic of Tatarstan, Naberezhnye Chelny, blvd. Glavmosstroevtsev, 3, sq. 246 indiraksu@mail.ru

Integration processes aimed at uniting the countries of the Commonwealth of Independent States (hereinafter – the CIS) in various industries and international projects are actively gaining momentum in the modern post-Soviet space. An important role among them is occupied by the field of economic cooperation ^{[1, p. 249]}, where the Russian Federation (hereinafter referred to as the Russian Federation) plays a dominant role. As a result, in order to ensure close cooperation in 2018, five states joined the Eurasian Economic Union (hereinafter – the EAEU) – the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic and the Russian Federation.

As a result of the unification into such an integration union, the territories of these states formed a customs zone, which differs in that common customs regulation measures for these States apply in this united territory. Another distinctive feature is the formation of a transformed customs control, which is carried out on the external borders of the Union, but, at the same time, the borders of the five states themselves remain open to each other. Within the framework of trade, the process of accounting for goods is fundamentally important for the EAEU member states. Accounting is aimed at controlling the commodity nomenclature of foreign economic activity (hereinafter – HS) The EAEU, the structure and dynamics of foreign trade flows, as well as the formation of the main activities of customs authorities for the prevention of crimes ^{[2, p. 104; 3, p. 561]}. In this connection, problematic aspects of criminal law policy in the field of regulating responsibility for smuggling may be highlighted ^{[4, p. 230]}. There is a need to implement a differentiated approach to criminalizing certain types of smuggling ^{[5, p. 72; 6, p. 59]}.

In our country, there are many laws and by-laws regulating the protection, protection, and turnover of cultural values ^{[7, p. 76]}, strategically important goods and resources ^{[8, p. 153]}, which the authors intend to pay further attention to.

In matters of moving cultural values across the border, problems and mistakes can be avoided "by creating a common base on cultural values between the EAEU member states, as well as by unifying the norms of the legislation of the EAEU member states on the procedure for moving cultural values across the border" ^{[9, p. 279]}.

When it comes to the movement of strategically important goods and resources across the border, it is necessary to refer to the norms of current legislation and the changes that came into force this year.

On April 1, 2024, Federal Law No. 43-FZ of 03/11/2024 entered into force, which amended the Criminal and Criminal Procedure Codes of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation, CPC of the Russian Federation). The changes affected the norms regulating criminal liability for the illegal movement of strategically important goods and resources across customs borders, cultural values, especially valuable wild animals, aquatic biological resources, plants, fungi belonging to species listed in the The Red Book of the Russian Federation and (or) protected by international treaties of the Russian Federation.

The question of the purposes for which the legislator differentiated Article 226.1 of the Criminal Code of the Russian Federation with the allocation of an independent part 1.1 is debatable. Previously, this corpus delicti covered heterogeneous types of goods ^{[10, p. 82]}, and the new edition of the Criminal Code established a clearer delineation of criminal liability for the illegal movement of a particular type of goods. It seems that this is due to the beginning, on February 24, 2022, of a special military operation (hereinafter referred to as the SVO), since it was then that issues related to the smuggling of goods and resources of strategic importance became the most urgent and required a separate, more elaborate, legal regulation.

First of all, this concerns the illegal movement across the customs border of the EAEU, as well as across the State border of the Russian Federation of "potent, poisonous, poisonous, explosive, radioactive substances, radiation sources, nuclear materials, firearms, its main parts (barrel, bolt, drum, frame, receiver), explosive devices, ammunition, other weapons, other military equipment, as well as raw materials, materials, equipment, technologies, scientific and technical information or the results of intellectual activity, can be used in the creation of weapons or military equipment", highlighted in a separate part 1.1 as part of the corpus delicti provided for in Article 226.1 of the Criminal Code of the Russian Federation. And, accordingly, Part 1 of Article 226.1 of the Criminal Code of the Russian Federation was also redacted, as a result of which separate responsibility was established for the illegal movement of strategically important goods and resources, "large-scale cultural values, as well as especially valuable wild animals, aquatic biological resources, plants and fungi listed in the Red Book of the Russian Federation or protected by international agreements of the Russian Federation, including their parts and derivatives".

No less controversial is the question of how the differentiated approach of the legislator to criminal liability for the illegal movement of goods across the customs border of the EAEU or the State border of the Russian Federation with the EAEU member states affected the content of the sanction of Article 226.1 of the Criminal Code of the Russian Federation. As follows from the updated version of the Criminal Code of the Russian Federation, according to Part 1 of Article 226.1 of the Criminal Code of the Russian Federation, imprisonment for up to five years is provided as the maximum punishment for this act. This sanction is somewhat "softer" compared to Part 1.1 of Article 226.1 of the Criminal Code of the Russian Federation – the latter provides for imprisonment for a term of three to seven years as the maximum punishment. This transformation, within the framework of Article 226.1 of the Criminal Code of the Russian Federation, states the fact that there is a tendency for the legislator to toughen penalties for smuggling of those goods and resources that are of strategic importance to the Russian Federation in economic and legal aspects, as well as influence national decisions taken in connection with the implementation of its.

In addition, considering changes in criminal legislation in the framework of illegal movement of goods across the customs border of the EAEU or the State border of the Russian Federation, it is also necessary to pay attention to the fact that according to Federal Law No. 43-FZ dated 03/11/2024 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" art. 200.2 of the Criminal Code of the Russian Federation "Smuggling of alcoholic beverages and (or) tobacco products" ^{[11, p. 94]}.

These changes in legislation were not introduced by chance, as evidenced by several important factors.

The first of these was related to the adoption of the Decree of the Government of the Russian Federation dated 03/31/2022 No. 542 "On Amendments to the Decree of the Government of the Russian Federation dated September 13, 2012 No. 923", as a result of which alcohol and tobacco products were included in the list of strategically important goods and resources for the purposes specified in Article 226.1 of the Criminal Code of the Russian Federation.

The second reason is the fact that earlier in note No. 1 to Article 200.2 of the Criminal Code of the Russian Federation it was noted: "smuggling of alcoholic beverages and (or) tobacco products was recognized on a large scale if their value exceeded two hundred and fifty thousand rubles." However, with the introduction in 2024 of changes to the List of Strategically Important Goods and Resources approved by the Government of the Russian Federation No. 923 dated September 13, 2012, a large amount of alcoholic beverages of heading 2208 of the EAEU Customs Code, as well as tobacco products included in the list, is recognized as worth more than one hundred thousand rubles.

It follows that the legislator intentionally establishes a certain register of strategically important goods and resources, and also reduces the large amount for the illegal movement of alcohol and tobacco products, the development and production of which is the most dynamically developing segment of the criminal market, for the purposes of Article 226.1 of the Criminal Code of the Russian Federation. Previously, in practice, there were often questions of classifying a particular type of product as an object of smuggling under Article 200.2 of the Criminal Code of the Russian Federation, which is confirmed in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 27, 2017 No. 12 "On judicial practice in cases of smuggling". This resolution states that when deciding on the presence of signs of smuggling, it is necessary to establish whether the transported goods belong to contraband items. With the introduction of changes and the compilation of a specific list of strategically important goods and resources, which includes alcohol and tobacco products, such qualification issues are minimized.

We consider it right to note that the complex task of criminalizing acts related to the smuggling of alcoholic beverages and tobacco products is quite extensive. It is aimed at protecting the economic interests of the Russian Federation, identifying counterfeit products; protecting the domestic market from unfair competition; suppressing the shadow turnover of alcoholic beverages and tobacco products; protecting the health and morals of the population. It follows that the object of crimes provided for in Article 200.2 of the Criminal Code of the Russian Federation previously was public relations in the field of foreign economic activity and customs control during the movement of alcoholic and tobacco products. An additional object was the protection of public health, since the abuse of alcoholic beverages and tobacco, as well as its varieties, causes impressive and tangible harm to the health of citizens of the Russian Federation. Currently, taking into account the attribution of alcoholic beverages and tobacco products to Article 226.1 of the Criminal Code of the Russian Federation, the legislator has fixed as the main object relations that ensure public safety ^{[12, p. 58]}, while presuming the protection of public health.

As part of the fight against smuggling, special attention should be paid to the operational situation. It represents the external and internal conditions in which customs (when moving goods across the customs border of the EAEU) and border authorities (when moving goods across the state border) function. The study and assessment of the operational situation is the core for the preparation of reports on the ongoing processes in the operational service area and for the detection of threats in the form of quantitative and qualitative indicators of illegal activities. It is necessary to proceed from the following factors: the arrangement of the state border of the Russian Federation; the equipment of checkpoints; the specifics of the goods being transported and the list of strategically important goods and resources; information about persons engaged in foreign economic activity; information obtained during customs control and operational search activities.

It seems that along with the transformation of the norms of substantive criminal law, the legislator correctly and timely made changes to the norms of procedural law. Thus, Federal Law No. 43 FZ dated 03/11/2024 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" introduced corresponding transformations of the norms of law establishing the forms of preliminary investigation and jurisdiction of criminal cases for illegal movement of goods across the customs border of the EAEU or the State border of the Russian Federation with the EAEU member States.

The new version provides that in cases of illegal movement of strategically important goods and resources, cultural values, especially valuable wild animals, aquatic biological resources and plants across the border, the investigation is carried out in the form of an inquiry under Part 1 of Article 226.1 of the Criminal Code of the Russian Federation by interrogators of the border authorities of the Federal Security Service and customs authorities of the Russian Federation. The investigation of crimes falling under Parts 1.1, 2, 3 of Article 226.1 of the Criminal Code of the Russian Federation is carried out by investigators of the Federal Security Service of the Russian Federation or internal affairs bodies of the Russian Federation. These changes were made to Article 151 of the Code of Criminal Procedure of the Russian Federation.

In the current realities, there is a tendency to combine efforts aimed at combating and countering the above-described crime ^{[13, p. 240]}. This commonality of activities of state bodies reflects the essence of the criminal procedure policy of the state, which gives powers to counteract the illegal movement of goods across the border not only to operational units of customs authorities, but also to units of other state bodies, such as the Federal Security Service of the Russian Federation and the Ministry of Internal Affairs of the Russian Federation.

The authors of the study conclude that the considered transformations in national legislation were carried out correctly, since the legislator not only competently assessed from a criminological point of view the trends in the development of public relations in the economic sphere, but also took into account the peculiarities of qualification and the importance of differences between crimes related to smuggling in the context of ongoing integration processes and the current unstable economic situation in the the country and the world.