To the Issues of Proving the Facts of Contactless Distribution of Narcotic Drugs at the Stage of Preliminary Investigation and Prevention of the Commission of this Crime

Fedorov Aleksandr Vitalievich ORCID: 0000-0002-9482-4064 PhD in Law Professor, Department of Administrative Law and Criminal Law Disciplines, Rostov State Transport University 344038, Russia, Rostov region, Rostov On Don, ul. Pl. Rostovsky Strelkov, 2, of. G509 colonel_fed@mail.ru

Millerova Elena Alexandrovna ORCID: 0000-0001-8628-5657 PhD in Law Associate Professor, Department of Administrative Law and Criminal Law Disciplines, Rostov State Transport University 344038, Russia, Rostov region, Rostov On Don, ul. Pl. Rostovsky Strelkov, 2, of. G506 SalogubEA@mail.ru

IntroductionThe activities of criminal organizations, including transnational ones, related to the illicit trafficking of narcotic drugs and psychotropic substances committed using information and communication technologies and digital currencies, represent one of the threats to the national security of Russia ^[1]. The prevention and suppression of these crimes, including the legalization of criminal proceeds from such activities, are among the tasks aimed at achieving the goals of ensuring state and public security in Russia.

 One of the reasons for the incessant growth of drug crime was the pandemic that broke out in 2020, which led to a decline in the economy, job cuts, which made it possible to significantly increase the volume of drugs sold by drug dealers by increasing the staff of willing citizens to earn extra money on the contactless distribution of narcotic drugs.Description of the problem.

The problem raised by us in the article is currently of particular relevance.

This is confirmed not only by statistics, but also by the presence of a sufficient number of works by M. V. Anisiforova, D. V. Kurakov, V. O. Davydov, V. I. Malik, A. P. Filchenko, V. V. Stukalov, who are also not indifferent to a similar problem. Modern technological progress has penetrated into our society. The possibilities of network information resources do not cease to surprise us, as they allow us to develop new, more complex criminal drug trafficking schemes, the scope of which is formed by deliberate, well-planned acts characterized by certain features, "adapted, according to A. P. Filchenko, to marketing techniques for promoting goods and services" ^{[14, 99]}. Street advertising of drugs, for example, in the form of applying it to the walls of houses, garages, fences, is practically irrelevant. The above-mentioned schemes are remote, including cross-border, allowing illegal distribution of narcotic substances by persons with high knowledge and skills in the field of IT technologies, ensuring their secrecy through end-to-end encryption technologies, IP telephony, call forwarding, while "reducing the number of personal contacts of criminals, cash as a form of payment when transactions" ^{[10, p. 1345]}. Earlier, in our writings, we have already written that the "Internet" has brought into our lives not only pros, but also cons, "especially when the users of this network are minors" ^[3]. According to the head of the Main Drug Control Department of the Ministry of Internal Affairs of the Russian Federation, the number of children and adolescents killed due to drug use increased 2.5 times from 2017 to 2022.The current technological progress has not bypassed drug crime, thereby leading to the emergence of a previously unknown method of selling drugs by contactless means, where a cross-platform instant messaging system with VolP functions ("Telegram", "Jabber", "Signal", etc.) plays a special role in promoting their use and distribution in the country ^{[8, p. 514]}.

Its essence is to find drug buyers by placing ads in social networks.networks, which certainly causes the convenience of this method of distribution for sellers and a problem for the investigation authorities. When exchanging information in these messengers, the use of special blockchain technologies with self-disappearing messages "makes it difficult for law enforcement officers to intercept them" ^{[6, p.127]}.As a rule, payment for the received goods is carried out through the services of various electronic payment systems, possibly even issued to front persons, and it is purchased through so–called caches, called "bookmarks".

So, by the Central District Court of Kemerovo, citizen P. was found guilty under part 1 of Article 228 of the Criminal Code of the Russian Federation. According to the circumstances of the case, he, using his mobile phone through the Telegram program, contacted the store where the narcotic substance "salt" was sold, let him know about his purchase. After that, he received a message with the number of the "Qiwi wallet", to which he sent 1000 rubles as payment for his order, and a little later he received an SMS message with the address of the "bookmarks", from where he took the purchased drug. As we can see, there is no direct personal contact between the one who sells and the one who receives in this case. The purchase finds its buyer in the shortest possible time, which is very convenient for both parties. In this connection, not only the scale of the territory of distribution of "bookmarks" is increasing, but also their number.Of particular concern is the fact that the participants in this crime in most cases are young people, even minors, who are able to easily master new interactive technologies and who are driven by the selfish motive of easy profit from the criminal activity in question, the income from which can reach up to 300 thousand rubles a day.

So, for example, the investigative part of the Investigative Department of the Ministry of Internal Affairs of Russia in the North Caucasus Federal District investigated a criminal case on the fact of the organization of a criminal community (criminal organization) by a citizen of K.D.V., which included four organized criminal groups whose activities were directly aimed at the distribution of narcotic drugs in a contactless way, using information and telecommunication networks. Citizen K.D.V. having a selfish goal to obtain illegal material benefits and intent on illegal enrichment, to obtain a permanent source of income from funds obtained by criminal means, as well as to expand the scope of activities for the sale of narcotic drugs (methylenedioxypyrovaleron) on the territory of the Rostov region, while living in Krasnodar, attracted to participate in as part of their criminal community (criminal organization) of residents of the Rostov region who want to earn extra money illegally. The mechanism of activity of this form of complicity consisted in the creation and functioning of sites on the Internet with an automatic system for the sale of narcotic drugs, by removing "bookmarks", packing them and subsequent illegal sales by territorial divisions of the criminal community to drug users – users of Internet sites. Each accomplice at the same time performed a certain role.

With the help of these sites, citizen K.D.V., using the Internet, organized through Telegram the illegal sale of synthetic narcotic drugs in large and especially large amounts purchased from unidentified persons to an unlimited circle of people in the cities of Rostov-on-Don, Shakhty, Novoshakhtinsk, Krasny Sulin, Volgodonsk, Kamensk-Shakhtinsky, Belaya Kalitva, Taganrog, Gukovo, Zverevo and Novocherkassk. The daily amount of drugs illegally sold by this criminal community in the Rostov region ranged from 100 to 200 grams.

For 1 gram of a narcotic substance, a citizen of K.D.V. set a price of 1,500 rubles, thus, the daily turnover of funds received from the illegal sale of these harmful substances ranged from 150,000 to 300,000 rubles. Characteristically, none of the members of the criminal community suffered from drug addiction.

The criminal actions of K.V.D. and his accomplices were proved by carrying out a variety of investigative actions, various types of examinations, including phonographic, psychological-linguistic, computer-technical expertise, as well as by conducting operational search activities, the materials of which, by a resolution on the provision of the results of operational search activities were sent to the investigator.

At the hearing, the citizen K.V.D fully admitted his guilt in the acts incriminated to him. On September 7, 2018, the Shakhty City Court of the Rostov region found him guilty of Part 2 of Article 210, Part 5 of Article 228.1, Part 3 of Article 30, part 5 of Article 228.1, paragraphs "a, b" of Part 4 of Article 174.1 of the Criminal Code of the Russian Federation and sentenced him to 10 years 4 months of imprisonment, with the punishment served in a high-security penal colony ^[7].

The results of the work.The study of the materials of this criminal case allowed us to give a correct legal assessment of the work of the bodies of inquiry and preliminary investigation.

Only a thoroughly investigated criminal case has the prospect of passing a guilty verdict by the court to a person found guilty of committing a crime and assigning him a fair punishment. An absolutely opposite situation developed during the investigation of a criminal case against citizen M. According to the circumstances of the case, the court initially found him guilty of the crime provided for by ch. 3 of Article 30, paragraph "d" of Part 4 of Article 228.1 of the Criminal Code of the Russian Federation (attempted illegal sale of narcotic substances) and imposed a sentence of imprisonment of 10 years and 6 months with serving a sentence in a high-security penal colony.

This sentence was overturned by the Judicial Board for Criminal Cases of the Second Cassation Court of General Jurisdiction, due to the fact that the court of second instance did not take into account the fact that in the materials of operational investigative activities submitted to the court by the prosecution, there is no specific information that M. was preparing for the sale of narcotic drugs. The accusation was based on the derivative testimony of witnesses, who, as it turned out, were operational officers of the ONC of the Department of Internal Affairs for the Central Administrative District of the Ministry of Internal Affairs of Moscow. According to their testimony: "They learned that M. was engaged in the illegal sale of narcotic drugs from the received operational information." They did not name a more specific source of their awareness to the investigation, and it was not clarified in the court of first instance. Other evidence of M.'s actions on the sale of drugs by him were not confirmed. Thus, according to paragraph 2 of Part 2 of Article 75 of the Criminal Procedure Code of the Russian Federation, this information could in no way be used as the basis of the accusation, since they relate to inadmissible evidence. During the investigation, it was established that M. was a drug addict, therefore he purchased narcotic drugs and psychotropic substances for personal consumption. Citizen M. could be believed, but the large size of the seized narcotic drugs and electronic measuring scales cast doubt on the reliability of his testimony that they were allegedly purchased for personal consumption. These evidences in court were not enough (others were absent) to find him guilty of selling narcotic drugs and to convict him. Taking into account the presumption of innocence, the actions of citizen M. by the court were reclassified to Part 2 of Article 228 of the Criminal Code of the Russian Federation with the imposition of punishment – 5 years of imprisonment with serving in a correctional colony of general regime ^[5].

Based on the above, it should be noted that the result of a qualitative investigation of a criminal case related to drug trafficking committed by a criminal community (criminal organization) is a complete and reliable establishment by the investigator of the circumstances of the crime committed, the correct definition of the evidence process in a criminal case, which as a result will affect the final result – a conviction and the appointment of a proportionate punishments. At the same time, we support the position of the legality of the results of operational investigative activities ^{[11, p. 99]}, the inadmissibility of an "accusatory" bias ^{[9, p. 100]}, "incorrect compilation of documents, "their witnesses", violations of constitutional rights" ^{[17, p. 80]}.

Some authors in their research point to the fact that in court proceedings, in most cases, Article 210 of the Criminal Code of the Russian Federation is excluded from the scope of the charge ^{[4, p. 11]}. This suggests that these crimes are difficult to prove in investigative practice. The difficulty in this case is manifested in the fact that, firstly, the participants of the criminal community do not always know each other personally, since the "cadres" are selected via the Internet, the maximum that the accomplices can know about each other is their nicknames (pseudonyms) under which they registered ^{[12, p. 120]}; secondly, the increased anonymity of some sites on the platform of which sellers work ^{[13, p. 190]}.  In our opinion, in order to solve the issues that arise when collecting evidence in criminal cases related to the distribution of drugs on the World Wide Web, it is necessary to involve specialists in this field who would help to detect and correctly record the traces of the crime in question.

Preventive measures.

Speaking about measures to prevent and combat drug addiction, the anti-drug policy in our country is aimed at reducing the number of crimes and offenses related to drug trafficking. Its implementation is visible in the strengthening of criminal liability for their sale and smuggling on an especially large scale, as well as for the sale of drugs in correctional institutions, transport facilities, places of cultural and leisure events, educational organizations. Since February 2021, criminal liability has been tightened for inducing the consumption of narcotic drugs, psychotropic substances or their analogues using information and telecommunication networks (paragraph "d" of Part 2 of Article 230 of the Criminal Code of the Russian Federation). Responsibility for advertising and propaganda of drugs using the information and telecommunication network "Internet" is defined by Article 6.13 of the Administrative Code of the Russian Federation.

The experience of some neighboring countries has shown that in the Republic of Belarus, parole does not apply to those convicted of crimes related to drug trafficking. Unfortunately, there is no such provision in our criminal legislation, the said ban would be one of the preventive measures aimed at combating drug addiction.

A large number of national State bodies are involved in preventive work to counter drug propaganda in other countries. For example, in the Republic of Kazakhstan, the main role in the fight against drugs is assigned to the Department for Combating Drug Crime of the Ministry of Internal Affairs of the Republic. At the same time, M. V. Anisiforova noted that the police of the Republic, together with other state bodies, monitors the Internet space in order to identify the addresses of links to websites or advertising pages, ads containing information about drugs, if necessary, creates special bodies as part of a commission or a working group ^{[15, pp. 168-175]}.

It is impossible not to agree with T. O. Chistanov, who deals with the issues of contactless distribution of drugs, in creating a "cyber patrol" in the system of the Ministry of Internal Affairs, in order to ensure effective investigation of crimes ^{[16, p. 88]}. But we believe that at the present time it will be difficult to implement this proposal due to the lack of personnel, namely the shortage of patrol and post service personnel who could directly engage in this work. You can talk a lot about crime prevention, but if there is no one to deal with it, then there will be no positive result. Few people pay attention to this, but it is really a fundamentally important problem, the result of which is a formal approach to the investigation of crimes, including in providing evidence in criminal cases.

In Russia, one of the goals aimed at the implementation of anti-drug policy is "the formation of a conscious negative attitude in society towards illegal drug use and participation in their illicit trafficking" ^[2]. The strategy of the state anti-drug policy of the Russian Federation by 2025 plans to reduce the criminogenicity of drug addiction, the involvement of the population in drug trafficking, etc. The realization of this goal is manifested in increasing the availability of preventive and diagnostic measures for drug addicts. Special attention should be paid to the spiritual and moral education of adolescents both at home and in educational organizations that form a stable rejection of illegal drug use among students.Speaking about the order of rehabilitation and resocialization, this issue is considered one of the priorities for drug addicts.

For example, only in the Rostov region there are 19 non-governmental organizations that help these individuals recover, that is, to receive assistance in the social, labor sphere (about 400 people annually). For these purposes, a considerable amount is allocated annually from the regional budget – 6.3 million rubles, as stated in the report on the results of the activities of the anti-drug commission of the Rostov region in 2020.

Conclusions.Investigating such criminal cases and carrying out the fight against drug trafficking, it is necessary to carry out a full range of operational investigative, criminal procedural measures aimed at exposing drug traffickers, a formal approach to finding and securing evidence should not be allowed in order to prevent impunity for those involved in drug crime and to preserve a healthy young generation.

Officials, considering measures to combat and prevent the contactless distribution of narcotic drugs, first of all need to solve the personnel issue of the lowest level in the police hierarchy. 

Difficulties in investigating the contactless distribution of narcotic substances arise due to the lack of special knowledge and skills in the field of computer technology. In this case, in order to avoid them, when searching for and correctly fixing evidence, the help of a specialist in the field of IT technologies is needed, namely, close cooperation with the operational units of the department "K" of the Ministry of Internal Affairs of Russia. In our opinion, the above will allow the formation of an acceptable, sufficient evidence base for such criminal cases and the presence of low indicators of the drug situation in Russia.