Qualification of illegal drug trafficking as part of commercial products

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

Many issues of determining the subject of crimes that infringe on the health of the population in the field of illicit drug trafficking (Decree of the President of the Russian Federation dated 11/23/2020 No. 733 "On approval of the Strategy of the State Anti-drug Policy of the Russian Federation for the period up to 2030"), despite the presumed evidence of their study, continue to remain out of scientific interest, which is not least due to the complexity knowledge of the diversity of their physical and right nature.

For example, the issue of criminal legal qualification of acts in relation to narcotic drugs in the composition of seeds of the oilseed food poppy Papaver somniferum Linnaeus, intended for use in the bakery, confectionery industry, as well as for sale to the population, seems insufficiently investigated ^{[1, p. 55]}. Seeds of food poppy do not belong to narcotic drugs or to other items prohibited for circulation. However, the source of their production is the sleeping poppy (a plant of the species Papaver somniferum L) and other poppy species of the genus Papaver, which are classified as plants containing narcotic drugs.

All parts of this plant and products of its processing are recognized as narcotic drugs, the turnover of which is prohibited in the Russian Federation (list I), namely: 1) poppy straw (hereinafter highlighted by the author), 2) milky juice of various types of poppy that are not sleeping poppies (a plant of the species Papaver somniferum L), but containing alkaloids poppies included in the lists of narcotic drugs and psychotropic substances, 3) opium (curdled sleeping poppy juice (Papaver somniferum L plant) and 4) poppy straw extract (poppy straw concentrate) (Decree of the Government of the Russian Federation No. 681 of 30.06.1998 "On approval of the List of Narcotic drugs, psychotropic Substances and their Precursors subject to control in the Russian Federation").

In the Single Convention on Narcotic Drugs of 1961, the sleeping poppy plant is called opium poppy, and its mown parts (with the exception of seeds) are defined as poppy straw.

Narcotic drugs are also the alkaloids of opium poppy, their synthetic analogues (mainly prescription or medicinal products) and compounds synthesized in the body, designated by the general term opioids. Various products derived from opium poppy, including opium, morphine and heroin, form a subgroup of opioids called opiates (United Nations Office on Drugs and Crime (UNODC)).

It is the illicit trafficking of opioids that continues to pose the greatest danger to the health and well-being of the population for more than a century, remaining one of the main problems of a global nature ^{[2, p. 19]}.

According to UNODC, in 2015, almost 12 million DALYs (the number of disability-adjusted life years), or 70 percent of the global burden of diseases associated with drug use disorders, were attributed to opioid use, mainly by injection. The number of injecting drug users (IDUs) corresponds to 0.25 percent of the world's population aged 15-64 years. The prevalence of injecting drug use in the Russian Federation is 2.29 percent (UNODC. World Drug Report. 2014. p. 6). More than half (53 percent) People from all over the world live in only four countries (China, Pakistan, the Russian Federation and the United States). These countries, as well as Ukraine, account for 68 percent of IDUs living with HIV (UNODC. World Drug Report. 2017. The second part. pp. 13, 26, 27).

In the Russian Federation, the ban on the sowing and cultivation of oilseed poppy by citizens has been in effect since 1987. However, the effectiveness of only prohibitive measures taken during the transformation of the state and social structure and the emergence of a new socio-political reality was insufficient to affect the stability of the negative trend of drug use. According to the data of the GIC of the Ministry of Internal Affairs of Russia in the period 1992-1998 , the number of drug users brought to justice increased from 60,814 to 134,937 people . (by 221.9%), of which the number of opium users increased from 10,966 to 54,750 people. (by 499%), heroin – from 3 to 14,442 people. (by 481,400%). In the total structure of the most seized drugs in 1998, the share of poppy straw was 15,814.9 kg, marijuana – 22,898.5 kg, raw opium - 1,803.7 kg, heroin – 192.8 kg ^{[4, pp. 137, 139]}. 

Currently, as follows from the information about the crimes of the GIAC of the Ministry of Internal Affairs of Russia for 2020, the total number of seized drugs (for criminal cases completed) amounted to 20,032.2 kg.

The ban on the cultivation of narcotic plants ^{[3, p. 13, 14, 27]} not only did not allow to stabilize the rapidly deteriorating drug situation, but also led to the elimination of many sectors of the economy that are functionally dependent on the use of valuable strategic raw materials. Under the current conditions, the needs of the food industry for poppy seeds in the absence of their domestic production began to be compensated by imports. According to the TrendEconomy Ltd portal, the main importer of this commodity group in 2020 was Russia, whose share in the structure of world imports amounted to 10.1% (20 million US dollars). Moreover, 8.34% of world exports of poppy seeds ($16.3 million) were exported from the Czech Republic to Russia (6.73 thousand tons in 2017). In general, the annual volume of imported opium poppy seeds needed for food purposes ranged from 8 to 13 thousand tons (explanatory note to the draft law of the Government of the Russian Federation dated 09.01.2019 G. No. 8p-P12).

Despite the natural restructuring of the drug market towards more effective synthetic drugs, the import of poppy seeds led to the resumption of large-scale drug use of poppy straw. Such a transformation of the drug situation was explained by the natural presence of narcotic drugs in the legally supplied seeds of food poppy in the form of a small amount of weed admixture of poppy straw, as well as fragments of the stem and boxes of poppy and immature seeds formed during industrial production. In fact, under the guise of food poppy seeds, an admixture of poppy straw was freely sold, from which extraction or acetylated opium was subsequently made ^{[5, p. 20]} by artisanal extraction (extraction) of narcotic active alkaloids with water or organic solvents. 

The revival of illegal trafficking of an extremely dangerous and cheap injectable drug was largely due to the quality requirements for oilseed poppy seeds harvested and supplied for industrial processing, established by GOST 12094-76 "Oilseed poppy for processing". According to the basic norms, in accordance with which the calculation of harvested oilseed poppy seeds was carried out, the content of weed impurity of 1% (particles of seed pods, remnants of leaves, stems, etc.) and oilseed impurity of 2% (poppy seeds with a clearly altered kernel color) was allowed. However, by agreement of the procurement organization and the supplier, the content of weed and oilseed impurities could be more than a restrictive norm of 15% if it is possible to bring such seeds to conditions that ensure their safety.

A fairly wide range of regulations allowed unscrupulous importers to use the legal supply of poppy seeds in order to camouflage raw materials for obtaining drugs under the guise of impurities containing poppy straw. In criminology, this kind of preparation and concealment of a crime by creating false information about an object is considered as a disguise or "falsification of purpose" ^[6].

Rosstandart Order No. 44-st dated March 28, 2006 approved a newGOST R 52533-2006 "Food poppy" with the date of entry into force from January 1, 2007 with the right of early application, which tightened the requirements for the quality of food products supplied.

The state standard, in particular, established that the seeds of food poppy should be uncontaminated (clean), that is, without the presence of visible foreign substances, and should not contain weed (organic) impurities: particles of leaves, stems, boxes, baskets, pods, poppy straws, as well as large seeds of weed and cultivated plants (in including oilseeds). Due to the absence of an appropriate regulatory legal act approved by the Government of the Russian Federation, the content of narcotic drugs in the food poppy had to be determined on the basis of the Methodological Recommendations of the ECC of the Ministry of Internal Affairs of Russia in 1995.

In 2010, amendments were made to the existing requirements, which, in particular, supplemented the physico-chemical indicators of food poppy with the column "the content of narcotic drugs is not allowed". The determination of narcotic drugs in the food poppy was prescribed on the basis of the Methodological Recommendations of the PKKN under the Ministry of Health of Russia in 2006.

In 2013, the newly adopted amendments excluded the mention of the presence of narcotic drugs from the GOST text.

Of course, the regulatory requirements for the quality of imported food poppy are not limited to the provisions of the GOST in question, since even its application is accompanied by the use of 30 reference standards. But it is this state standard that contains a list of special prohibitions and restrictions, compliance with which serves as a necessary condition for placing food poppy goods under the customs procedure of release for domestic consumption. And one of the main indicators of compliance with GOST, as well as the risk profile ^[7], which directly affects the subsequent judicial practice of considering cases in relation to the food poppy product, is a weed admixture in the form of poppy straw. However, the legal nature of poppy straw, the quantitative characteristics of which determine the quality of the supplied food poppy and its legal features, in its objectified expression turned out to be ambiguous.

So, in specific regulatory legal relations, customs, poppy straw as part of the food poppy product was considered in its proper meaning as an admixture in accordance with the provisions of state standards. But in general regulatory legal relations, poppy straw was a narcotic drug – the subject of administrative offenses or crimes provided for in Articles 228 and 228.1 of the Criminal Code of the Russian Federation. In these cases, the signs of the subject were determined according to the norms of administrative or criminal procedure legislation, which had priority over the provisions of GOST and other technical and regulatory documents.

However, the cumulative analysis of law enforcement assessments of homogeneous acts in relation to the same physical object, in the test sample of which the presence of narcotic drugs was always confirmed by expert opinions, did not allow us to come to an understanding of the principles and grounds that determined the subsequent qualification and type of legal responsibility.  

So, according to one of the cases considered by the court, the customs expert, having established a weed admixture of poppy straw weighing 6480 g in the composition of the sample of the product, food blue poppy seeds weighing 21600 kg, concluded that the sample did not correspondGOST R 52533-2006 and is not a food poppy. The mass fraction of the admixture of poppy straw in the batch of goods was 0.030%. Since poppy straw is a narcotic drug, but there was no license for its movement during customs declaration, it was concluded that the procedure for importing goods included in item 383 of List I of Section 2.12. "Narcotic drugs, psychotropic substances and their precursors" was violated (Appendix No. 10 to the Decision of the EEC Board No. 30 of April 21, 2015), which forms the objective side of the administrative offense provided for in Article 16.3 of the Administrative Code of the Russian Federation "Non-compliance with prohibitions and (or) restrictions on the import of goods into the customs territory of the EEC or into the Russian Federation and (or) the export of goods from the customs territory of the EEC or from the Russian Federation" (Resolution of the judge of the Fourth Cassation Court of General Jurisdiction of 09.06.2021 No. 16-3469/2021).

In another case, the delivery to the territory of the Russian Federation of blue poppy seeds intended for use in the food industry and sale to the population was regarded as the transfer to the territory of the Russian Federation of narcotic drugs opium weighing 37,312,255 g and poppy straw weighing 4,812,789 g containing narcotic active alkaloids of opium – narcotic drugs morphine weighing 295,721 g, codeine weighing 209.186 g and thebaine weighing 712.217 g, under the guise of batches of food poppy seeds with a total weight of 42,405,294.1 g.

The estimated amounts of morphine and codeine in food poppy seeds were 0.00069 and 0.00049%, respectively, and poppy straw – 0.011%.

Based on expert opinions, cargo customs declarations containing information on the compliance of blue poppy seeds with the GOST R 52533-2006 standard were found to be unreliable, compiled with concealment of information about the presence of layers and impurities of narcotic drugs.

Under these circumstances, the supply of food poppy was qualified as an attempt on smuggling committed by an organized group (Part 3 of Article 30, Part 4 of Article 188 of the Criminal Code of the Russian Federation); preparation for the illegal sale of narcotic drugs by an organized group, on an especially large scale (part 1 of Article 30, paragraphs "a", "d" of Part 3 228.1 of the Criminal Code of the Russian Federation); smuggling of narcotic drugs by an organized group, on a particularly large scale (paragraphs "a", "b", Part 4 of Article 229.1 of the Criminal Code) and other articles of the Criminal Code (Sentence of the Bryansk Regional Court of January 24, 2019. Case No. 2-2/2019).

The examples given show that in the absence of unambiguously understood criteria that make it possible, under comparable circumstances, to reasonably anticipate the legal consequences of one's actions, the intended conclusions about the content and direction of intent in relation to the delivered goods may differ significantly. After all, as follows from court rulings, the supply of 21.6 tons of poppy seeds with an admixture of the narcotic poppy straw 0.03% forms the composition of an administrative offense, the subject of which is the product. But the delivery of the same goods with a total weight of 42.4 tons and 3 times less content of impurities of narcotic drugs – 0.011%, was qualified as a crime, the subject of which was narcotic drugs.

The intent to illegally sell the narcotic poppy straw under the guise of selling poppy seeds cannot be doubted in cases of the content of a weed admixture of a narcotic drug – poppy straw, in the amount of 4.6% (Appeal ruling of the Stavropol Regional Court of 29.05.2020 N 22-953/2020); sales with the attached precursor acetic anhydride; documentation of the facts of sale by according to the results of operational search measures "verification purchase", "surveillance" and others; preliminary delivery by law enforcement agencies of a notice banning the sale of food poppy containing an admixture of the narcotic drug poppy straw on the territory of the Russian Federation (Ruling of the Eighth Cassation Court of General Jurisdiction No. 77-1898/2020 dated 22.09.2020), etc.

Legal uncertainty in the assessment of compliance with prohibitions and (or) restrictions on the supplied poppy seeds in some cases was generated by regulatory costs in the work of regulatory authorities. As noted above, they could be authorized for early application the amendments made to the state standard with a period of introduction of 9 months from the date of approval, which created additional opportunities for subjective discretion in the process of interpreting the identified violations. Or, for example, in cases of criminal prosecution for violating the requirements of the state standard for the content of impurities under an unknown name poppy straw, which by default was considered as poppy straw. As a result of the identification of the concept of poppy straw with the subject of the crime poppy straw, the detected violations in relation to this impurity were qualified under Article 228.1 of the Criminal Code of the Russian Federation (Cassation Ruling of the Supreme Court of the Russian Federation dated 23.08.2012 No. 77-O12-8).

The main reason for the lack of uniform law enforcement practice of establishing the subject of drug crime ^[8] was the extremely contradictory legal assessments of the presence of poppy seeds of food admixture of poppy straw. First of all, in cases of the use of legal fiction, when not the substance itself was recognized as a narcotic, but a mixture in the composition with this substance, regardless of its quantity (note to list I of the Decree of the Government of the Russian Federation No. 681 of 30.06.1998). As a result of such assumptions, the size of the subject of the crime was calculated by the total weight of a mixture of seeds of the poppy plant and the narcotic drug poppy straw (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Kabardino-Balkar Republic dated March 18, 2011. Case No. 22-99). That is, the qualification of the crime was determined by the weight of the mixture, but not by the actual weight of the narcotic drug included in the mixture, the size of which had no legal significance and did not affect the qualification. In other words, the fact of the presence of a narcotic drug in the mixture was of qualifying importance, but not its size.

But in other cases, the size of the object of the crime – poppy straw, which as an admixture was part of the seeds of the poppy plant, was determined in terms of the total weight of seeds (Appeal ruling of the Stavropol Regional Court of 29.05.2020 No. 22-953/2020) or the entire mixture(The verdict of the Aleysky City Court of the Altai Territory dated September 07, 2016.Case No. 1-1/2016).

In the criminal case discussed above, the subject of drug crime was "disguised as food poppy seeds" all narcotic drugs that are part of the food poppy admixture: poppy straw, opium, as well as narcotic active alkaloids of opium – morphine, codeine and thebaine.

Some authors believed that in such cases morphine and codeine should be recognized as the objects of crimes, "the quantitative content of which should determine the qualification of a crime under the article of the Criminal Code" ^{[9, pp. 25-30]}. In our opinion, it is impossible to agree with the position of the preliminary investigation, as well as the judgment expressed, otherwise it is difficult to understand why poppy straw itself is a narcotic, and being an admixture in the composition of the food poppy mixture turns into a set of alkaloids contained in it, and not all?

Despite the use of various methods of describing and establishing the subject of crimes, the criminal legal qualification was recognized as legitimate in all cases, apparently due to the impossibility of a positive challenge to court rulings issued in relation to narcotic drugs. However, the universal legality of the heterogeneous multiplicity of legal assessments in itself is questionable, if we take into account the absolute identity of all objects of expert research, the results of which have always established narcotic drugs, but of different types and weight values, as well as the subsequent qualification of committed acts. Especially if the size of the drug was calculated by the weight of the mixture.  

In an effort to achieve greater uniformity of law enforcement practice, an attempt was made to invalidate the Decree of the Government of the Russian Federation No. 681 of June 30, 1998 regarding the inclusion of poppy straw in List 1 of narcotic drugs. The Supreme Court of the Russian Federation reasonably and fairly refused to satisfy the stated requirements, pointing out that although poppy straw is not recognized by the Single Convention of 1961 as a narcotic drug as such, it is nevertheless subject to special control measures provided for in articles 22, 24 - 28 of the Convention. In addition, the list of narcotic drugs (list 1) includes a concentrate from poppy straw (the material obtained when the poppy straw began to undergo the process of concentration of alkaloids contained in it, if this material becomes the subject of trade) (Decision of the RFOT Supreme Court on January 16, 2014 No. AKPI 13-1137).

The Constitutional Court of the Russian Federation has at least twice refused to accept for consideration complaints about the non-constitutionality of including poppy straw in the list of narcotic drugs, which is a weed (organic) admixture of food poppy, as well as regarding the inclusion of poppy straw in the definition of "narcotic drugs" and its distribution to all mixtures that include narcotic drugs regardless of their quantity (Ruling of the Constitutional Court of the Russian Federation No. 2166-O dated September 25, 2014 and No. 2193-O dated September 28, 2017).

Despite the categorical position of the Constitutional Court, the issue of attributing a mixture containing narcotic drugs to a narcotic drug, regardless of their quantity, should hardly be considered closed. It means that Federal Law No. 3-FZ of 08.01.1998 "On Narcotic Drugs and Psychotropic Substances" and the Single Convention on Narcotic Drugs of 1961 define a slightly different concept – a drug meaning a mixture, solid or liquid, which contains some narcotic drug. However, law enforcement practice is based on the use of the concept of a mixture, which is formulated precisely in the note to List I of the List of Narcotic Drugs and Psychotropic Substances of the Decree of the Government of the Russian Federation No. 681 of 30.06.1998.

Meanwhile, the UN Single Convention, when defining Lists I-IV, indicates that these Lists "mean respectively numbered lists of narcotic drugs or drugs", thereby emphasizing the formal legal nature of substances and drugs included in all Lists. But the decree of the Government of the Russian Federation considers the concept of a mixture of drugs in a formally indefinite meaning and extends it only to List I, presenting the list of drugs with only two positions.

In this regard, the position of the Constitutional Court on the above-mentioned complaints looks controversial, which was justified by the definition of the Single Convention, but in its reverse statement: mixtures, i.e. solid or liquid preparations. The conclusions about the constitutionality of the legislative provision are also questionable, indicating that its regulation is "carried out in accordance" with the resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2006 No. 14 "On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and poisonous substances", adopted 8 years later the contested decree of the Government of the Russian Federation.

In our opinion, the decree of the Government of the Russian Federation in the analyzed part is an anachronism, in which at the time of adoption the most repressive scientifically unfounded ideas about measures to prevent drug trafficking were concluded. In particular, by establishing a large size of heroin over 0 grams and including provisions on the mixture, which made it possible to bring to criminal responsibility even if it was impossible to determine the weight values of drugs, only for the presence of traces or particles of it (in hand washes, in clothing pockets, etc.), thereby artificially inflating the real level of drug crimes by several orders of magnitude.

The introduction of regulations on the attribution of their mixture to drugs was facilitated by the absence at that time of the required expert technologies for accurately determining the amount of drugs in the mixture. On the contrary, modern mass spectrometers are able to detect even the presence of drug molecules in the mixture. It was the use of this toolkit in the analyzed criminal case that allowed, in particular, to establish the presence of 561.78 grams of codeine "disguised as food poppy seeds weighing 147.4 tons" (4 freight cars). However, the calculations presented by the defense showed that 2.1 million liters of chloroform would have been required to extract opium alkaloids (295.721 grams of morphine and 209.186 grams of codeine) from 43.4 tons of poppy seeds according to the approved method. The lack of a real possibility of using a weed impurity in an insignificant concentration in the composition of poppy seeds for drug use later served as one of the grounds for the acquittal for "failure to establish the event of the crime."

In the context of the above, it is fundamentally important to resolve the issue of the natural presence in the food poppy of impurities in the form of narcotic drugs in the composition of layers containing latex alkaloids on seeds and microparticles of the stem and pods formed during maturation and production. In this case, we are talking about the competition between the norms of technical regulations that establish requirements for the purity of poppy, for example, allowing the actual content of a weed impurity not exceeding 0.2 percent (letter of the Rosselkhoznadzor dated November 21, 2007 N FS-AS-7/11811), and the norms of administrative or criminal legislation regulating the production upon detection of drugs – weed impurities of poppy straw. Allowing competition in favor of the latter norms means, as follows from the considered criminal case, the legality of the qualification of preparation for the illegal sale of narcotic drugs on a particularly large scale, even if there is 0.00049% codeine in the seeds of the food poppy. The scientific and applied judgments of the defense party in the framework of an adversarial criminal trial about the impossibility of the practical use of the specified amount of drug for drug use were regarded as an encroachment "on the foundations and interests of society and the state", the creation of "prerequisites for a threat to the national security of the state, physical health; conditions that infringe on national security".

In conclusion, we believe it is important to receive guidance from the Supreme Court of the Russian Federation on the results of the generalization of judicial practice in cases related to the qualification of the presence of a weed admixture of poppy straw in the composition of food poppy based on its maximum content in the product. And of course, it is necessary to exclude the modern practice of using legal fiction in the provisions on the List I drug mixture, since such a technique, formulated taking into account the technological capabilities of the state at the end of the last century, no longer applies to cases of "establishing irreplaceable uncertainty" ^{[10, p. 323]}.