Contradictions between the Practice of Operational Search Activities

and the Objectives of Criminal Legislation (on the Example of

Countering Drug Trafficking)

Igor Ivanovich Golubov

, Dmitry Ludvikovich Kharevich

, Mikhail Vyacheslavovich Denisenko

and Larisa Vadimovna Shatokhina

Zheleznodorozhny City Court of the Moscow region, Zheleznodorozhny, the Moscow region, Russia

The Department of Operational-Investigative Activities of the Academy of the Ministry of Internal Affairs of the Republic

of Belarus, Minsk, Belarusian

Moscow University of the Ministry of Internal Affairs of Russia named after V. Ya. Kikot, Russia

Academy of Law and Management Federal Penitentiary Service, Russia

Keywords: Operational-investigative activity; criminal legislation tasks; national security of Russia; drugs; counteraction

to illegal drug trafficking.

Abstract: The article analyzes the tasks of the Criminal Code of the Russian Federation and the practice of operational

investigative activities in order to reveal the contradictions between them. The objective of the work is a

comprehensive analysis of criminal legal means of countering crimes committed in the field of illicit drug

trafficking, through the prism of the practice of their implementation in the activities of departments of internal

affairs agencies in the implementation of operational search activities (ORD). To achieve this goal, the authors

set the main tasks that follow from the peculiarities of the current practice of the ORD; specifically, identifying

contradictions between the practice of the ORD and the task of preventing crimes in the field of drug

trafficking specified in the Criminal Code of the Russian Federation. The use of the method of comparative

analysis in conjunction with general scientific methods allowed us to confirm the hypothesis put forward by

the authors that there are contradictions between the tasks of the Criminal Code of the Russian Federation and

the practice of the ORD in the realm of countering drug trafficking. In the course of the study there was an

attempt to show the ineffectiveness of countering drug trafficking due to the imbalance between the norms of

the current criminal legislation and the police practice in this area. The article also substantiates the need for

a balanced relationship between the norms of the Criminal Code of the Russian Federation and the practice

of the Criminal Code of the Russian Federation to improve the quality of comprehensive counteraction to this

type of crime; necessary measures are suggested to be taken. The results of the study allow us to expand the

knowledge of the science of operational-search activities, and contribute to improv the effectiveness of the

operational departments of the internal affairs agencies related to countering illicit drug trafficking.

1 INTRODUCTION

According to Article 2 of the Criminal Code of the

Russian Federation (hereinafter - the Criminal Code

of the Russian Federation), the tasks of criminal

legislation are the protection of human rights from

criminal encroachments as well as the prevention of

crimes. In order to carry out these tasks, the Criminal

Code of the Russian Federation defines which acts

being dangerous to the person, society or the state are

recognized as crimes; and what types of punishments

https://orcid.org/0000-0003-2414-4546

and other measures of a criminal legal nature are

established for their commitment.

According to Article 2 of the Federal Law of

12.08.1995 No. 144-FZ «Operational search

activities», besides detecting, suppressing, disclosing

crimes, revealing and identifying persons who

prepare them, commit or have committed crimes, etc.,

the task of operational search activities is also crime

prevention.

Despite the existence of a single task-for criminal

law and operational - search activities-in the form of

crime prevention, an assumption is possible to be

420

Golubov, I., Kharevich, D., Denisenko, M. and Shatokhina, L.

Contradictions between the Practice of Operational Search Activities and the Objectives of Criminal Legislation (on the Example of Countering Drug Trafﬁcking).

DOI: 10.5220/0010646000003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

420-424

ISBN: 978-989-758-532-6; ISSN: 2184-9854

made that nowadays there is a contradiction between

the tasks of the Criminal Code of the Russian

Federation and the established practice of

operational-search activities in the field of countering

illicit drug trafficking. We will try to test this

hypothesis in this article.

2 MATERIALS AND METHODS

This study was based on the generalized materials of

criminal cases on drug trafficking proceeded in the

Railway City Court of the Moscow region from 2004

to 2020, including those that were examined by one

of the authors of this article.

The methodological basis was based on a

dialectical approach to the disclosure of legal

phenomena and processes using general scientific

(system, logical, analysis and synthesis) and private

scientific (formal - legal, linguistic - legal,

comparative-legal) methods. The use of a

combination of these methods allowed us to

determine the main directions of the state's activities

to improve the effectiveness of countering drug

trafficking, as well as to propose specific primary

steps to eliminate the contradiction between the

objectives of the Criminal Code of the Russian

Federation and the established practice of operational

search activities in this area.

3 RESULTS AND DISCUSSION

Modern science identifies various causes and

consequences of drug abuse (Salas-Wright, Vaughn,

González, 2016). Different PA States apply different

approaches to the trafficking of these substances.

Starting from their ban (Melissa A. Logue, 2017), to

official authorization (Seddon, Floodgate, 2020).

In Russia and the CIS countries the responsibility

for illegal drug trafficking is indicated in criminal

legislation (Banaeva, 2016).

An analysis of the Criminal Code Amendments of

the Russian Federation, which establish responsibility

for illegal drug trafficking, allows us to state a

significant tightening of responsibility for this type of

crime since January 01, 2013. These amendments

were introduced in accordance with Federal Law No.

18-FZ of 01.03.2012 "On Amendments to Certain

Legislative Acts of the Russian Federation". So, if

before January 01, 2013, for illegal possession

without the purpose of selling narcotic drugs on a

particularly large scale, liability was provided in the

form of imprisonment for a period of 3 to 10 years,

after the date mentioned above – from 10 to 15 years.

If the sale of narcotic drugs in the purchased amount

was previously punishable by 5 to 12 years of

imprisonment, then after the specified date - from 10

to 20 years. Therefore, if the sale of a particularly

large amount was previously punishable by

imprisonment for a term of 8 to 20 years, now it is

punished from 15 to 20 years.

Such a significant increase in the terms of

imprisonment had an objective to strengthen the role

of the Criminal Code of the Russian Federation in

preventing the illegal sale of narcotic drugs and was

directed against drug dealers, i.e. against persons who

deliberately imported drugs into the territory of

Russia or distributed them on a professional basis.

This is confirmed by the list of convicts under

Article 2281 of the Criminal Code of the Russian

Federation for the period from 2004 to 2012that

preceded these amendments. Thus, all the examined

verdicts under Article 2281 of the Criminal Code of

the Russian Federation for a particular district during

this period show that 21.10 % of those illegal drug

sales were convicted by foreign citizens who

permanently reside in the republics of Central Asia

and arrived in Russia for the purpose of illegal

distribution of narcotic drugs. Moreover, according to

the examined criminal cases materials, only 2% of

those persons used drugs. Among the other convicts,

43.28% of the ones used drugs. As a rule, convicted

foreign citizens did not have registration on the

territory of the Russian Federation. Also, these

individuals did not have a permanent legal source of

income and did not have stable social ties in Russia.

In addition, in the vast majority of cases, the materials

of criminal cases had information about the purchase

of other drug dealers from foreign citizens.

The research based on the same parameters of

similar criminal cases in the same area in the period

from January 1, 2013 to October 2020, i.e., for almost

the same period of time, determined the following.

Only 7.36 % of those convicted of illegal drug sales

were foreign citizens permanently residing in the

republics of Central Asia and arrived in Russia for the

purpose of illegal distribution of narcotic drugs.

Among these individuals, 57.14% had already used

drugs. Among the other convicts, more than 90.0%

used drugs. 42.86% were registered on the territory of

the Russian Federation. The same number had an

official source of income. 14.29 % were assimilated

in Russia and had stable social ties (married to

Russian citizens, had children who were Russian

citizens).

Contradictions between the Practice of Operational Search Activities and the Objectives of Criminal Legislation (on the Example of

Countering Drug Trafﬁcking)

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A comparison of the statistics mentioned above

indicates a significant decrease in foreign citizens

convicted of illegal drug sales (three times), an

increase in drug addicts (25 times), and the

assimilation of these foreign citizens into Russian

society. Also, these data record a general increase in

several times of drug addiction among those

convicted of illegal sale of narcotic drugs.

The criminal cases mentioned above were also

studied regarding the type of narcotic drugs

(psychotropic substances) that are the object of

crimes. The research revealed that it was heroin from

2004 to January 1, 2013, 73.28% (the rest - hashish,

marijuana, amphetamine, methadone, MDMA, etc.);

after that Butanoyl-1-methylindole (1-(1-methyl -

1H-indole-3-yl)butane-1-one) and its derivatives (the

so-called "spice") come first from January 1, 2013, 3;

and then – mephedrone and the so-called "salts"-N-

methylephedrone, etc., and their derivatives.

Nowadays, mephedrone and "salts" have practically

displaced all other types of narcotic drugs and

psychotropic substances from the illegal market of the

country.

The delivery options of these drugs to Russia are

also different. Thus, heroin was brought mainly from

the Central Asian republics (Tajikistan). "Spice"

requires special production conditions and came to

our country from China. The bulk of mephedrone and

"salts" are currently delivered to Russia from China,

some of them from African countries (Kenya); these

drugs are also produced in Russia; and the volume of

this production is currently growing; nevertheless, it

is not competitive with the drug coming from China

due to the cost and the volume of production.

Now let come up to the main feature of the

modern situation with drugs trafficking which is

considered to be the way of it. Earlier heroin and other

drugs were distributed be the means of selling from a

salesman to a customer, approximately since 2010-

2013, according to the criminal case mentioned

above, sales have begun to be done by means of

«zakladki»/«drug stash», i.e. secret places where

drugs are hidden after online payments with the

subsequent texting of the exact coordinates to a

customer. This way of drug distribution is determined

to be safe since a seller does not have any direct

contact with a customer, which causes difficulties in

making an operational search event (hereinafter

referred to as the ORM) "verification purchase" in

order to prevent crimes. Online stores, where these

days drug trade is carried out, were organized in these

last years. The most famous of them are "Thor" and

"Hydra". Currently, almost all drug sales, with rare

exceptions (meaning the sale of drugs between

previously familiar drug addicts), are carried out

through «zakladki»/ «drug stash».

These criminal case researches indicate that

wholesale, as well as a small part of retail trade, is

carried out by the same foreign citizens (as a rule,

accounts and phone numbers are registered in the

Republic of Tajikistan). The most part of the retail

trade is done by drug addicts themselves (Pankratov,

Sadrislamov, 2020), who work as so - called

"kladmen" – persons who buy drugs on a large or

especially large scale, sometimes packaging them and

making «zakladki»/ «drug stash» for direct

consumers at the price from 500 rubles-depending on

the type and size of the drug or psychotropic

substance.

Here we ought to refer to the practice of

operational-search activities for the suppression of

drug trafficking. Hence, earlier, until about 2013, the

most common and effective type of OPM in this area

was " verification purchase "(Pomelov, 2019), now it

is" surveillance " (Abramochkin, 2016).

In order to prevent the illegal narcotic drug

selling, the ORM "verification purchase" was carried

out and is carried out according to the standard

scheme: obtaining information from operational

sources about the person selling narcotic drugs - find

a buyer trusted by a seller, - reach an agreement

between the buyer and the seller about the place of

sale – hand the buyer money-the sale itself under the

control of operational officers-detain the seller at the

scene of the crime.

These days, the suppression of illegal sales is

mostly carried out according to the following

approximate scheme: obtain operational information

about the places most intensively used for «zakladki»/

«drug stash». Then the ORM "surveillance" of the

specified area is carried out. Arrest of suspicious

persons in this territory. Their body and a mobile

phone search for the presence of narcotic drugs. In

case of narcotic drugs detection, check, with the

consent of the detainee, the correspondence in the

phone of the detainee, which later allows you

correctly to qualify the crime committed – as illegal

acquisition and possession of drugs or as an attempt

to illegally sell them.

Applying the above-mentioned scheme in modern

ORM practice, a drug addict, who earn for a dose by

means of «zakladki»/ «drug stash» (Shulzhenko,

2019), is mostly detained, but not a professional drug

dealer.

Therefore, the change in the method of sale-

through online stores has led a significant change in

the list of the persons committing these crimes.

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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And nowadays real drug dealers, who provide the

flow of drugs to Russia through couriers; these ones

bring drugs in a particularly large amount and make a

large «zakladki»/ «drug stash», have reduced to a

minimum the probability of stopping their criminal

activities. Only the wholesale drug courier as well as

in most cases those persons, who are recruited via the

Internet for making «zakladki»/ «drug stash»

(kladmen), are at risk of being detained.

According to the practice wholesome drug

couriers are detained extremely rarely. It happens due

to the methods of conspiracy they have developed in

recent years and the price of so-called «zakladki»/

«drug stash» in the amount of millions and tens of

millions rubbles, this causes a relevant drug courier

recruitment and training.

The only ones who left are so-called "kladmen",

who are drug addicts themselves in the vast majority

of cases. These persons suffering from this disease are

under ORM "surveillance", which is carried out in

convenient places to make "«zakladki»/ «drug stash».

As a result, people from this category of dealers are

likely to be wound up in court

These are exactly those drug addicts to whom

severe criminal penalties are currently applied which

were worked out at the turn of 2010 regarding to the

persons being real dealers without being drug addicts

themselves.

That is, the authors of the amendments in

Criminal Code of Russia indicated above, enlarging

the sentence term did not take into account and could

not take into account the fact that the vast majority of

drug dealers will become drug addicted themselves.

Herewith, the fact should be taken into account

that there were not such a significant proportion of

drug addicts among drug dealers before the tightening

of the law indicated above. This is confirmed by the

data of investigated criminal cases as well as their

statistics.

In this part of the article it is very important to

point out that in 1953 The World Health Organization

(WHO) admitted drag addiction (as well as alcoholic

addiction) a progressing, incurable and fatal disease.

The tenth revised edition of the International

Statistical Classification of Diseases and Related

Health Problems (ICD-10) includes Section V, which

contains a detailed classification of more than 300

mental and behavioral disorders.

This section includes mental and behavioral

disorders due to the use of psychoactive substances.

These particularly include mental and behavioral

disorders resulting from the use of alcohol (Code F10

according to ICD-10), opioids (F11), cannabioids

(F12), cocaine (F14), other stimulants, including

caffeine (F15), hallucinogens (F16), etc.

According to the WHO recommendations, an

addict is considered a person whose condition is

characterized by periodic or constant intoxication; an

increase in the dose of a substance to obtain the

desired narcotic effect; a distinct mental and physical

addiction to the drug being injected, which is revealed

in an irresistible craving to the drug; an irresistible

desire to obtain the drug by any means.

Thereby, nowadays as a result of the operational

search activities operational departments of the police

prevent the criminal activities of drug-dependent

distributors, i.e., people who are sick and need

treatment.

Moreover, as practice depicts and the incessant

flow of drugs into our country shows, modern

methods of carrying out operational and investigative

activities are unable to suppress the actions of persons

who directly make excessive profits from this type of

criminal activity.

This ORD practice is contrary to the tasks of

Criminal Code of Russia since it is unable to suppress

the commitment of new crimes related to illicit drug

trafficking.

This is due to the facts that, firstly, the persons

organizing supply of drugs to Russia, including so-

called «operators», are unreachable for operational

departments of law enforcement agencies; secondly,

new synthetic drugs (mephedrone," salts") enable to

generate psychological addiction from the first use,

they have affordable price, and the most important

issue is the availability of acquisition and availability

on the Internet, in the streets, as well as active

advertising of drugs.

Moreover, with regard to the last condition,

namely, the transition of drug trafficking to the

"Internet", its main victims are the most active users

of the world wide web – minors and young people,

for whom this web has become not only a

communication background but also work one; a

place of purchasing goods, studying, and spending

leisure time. Due to the peculiarities of puberty, the

distribution of drugs has now acquired an avalanche-

like character among minors.

Thus, the change of environment and means of

drug trafficking has led to the contradictions between

ORD practice and the tasks of Criminal Code of

Russia in the realm of countering illicit drug

trafficking.

Besides the conclusions mentioned above this one

is proved by the fact that the operational search

measures carried out by the police departments

prevent the criminal activity of the lower level of drug

Contradictions between the Practice of Operational Search Activities and the Objectives of Criminal Legislation (on the Example of

Countering Drug Trafﬁcking)

423

trade, which participants-due to their dependence -

are interchangeable and inexhaustible as long as the

society exists.

Meanwhile, -based on the peculiarities of the

perception of the surrounding reality by drug addicts

and the previously listed signs that characterize such

patients-long term sentence of drug addicts is

respectively unable to affect the prevention of new

crimes by both drug-dependent convicts and other

persons.

Everything outlined above indicates that the

current situation in this realm threaten the national

security of the Russian Federation as contemporary

police operation practice is incapable neither to

influence to some extent on drug flow entering Russia

nor on growing drug distribution.

4 CONCLUSIONS

Summarizing everything presented in this article, the

following primary steps are considered to be

suggested in order to eliminate the contradictions in

the name of the article.

First, operation police departments ought to be

mobilized to elaborate and implement new methods

of detecting and suppressing the supply of drugs to

the Russian Federation. This is a priority task, the

implementation of which affects the national security

of Russia.

Second, to exclude by all means any technical

possibility of obtaining information from the Internet,

promoting the use of psychoactive substances, as well

as information about their acquisition and

manufacture. According to the author of the article

this task is also crucial since it affects the national

security of Russia, since potential victims of drug

usage are the most active users of the Internet are

minors, who make up the country's gene pool.

Third, to minimize any possibility of obtaining

information promoting the usage, production and

acquisition of drugs from any other sources besides

the internet.

Fourth, to develop real cooperation with the

operational departments of foreign law enforcement

agencies in terms of countering the illegal supply of

drugs to Russia, as well as countering participation in

the distribution of drugs on the territory of Russia by

the so-called foreign "operators". This is especially

true about the countries through which the main drug

supplies are currently flowing to our country.

All listed measures refer just to eliminate the

contradiction between the tasks and the practice of

crime prevention in this realm. The problem of drug

addiction in the country is global and requires the

immediate undertaking a set of proactive measures in

all social spheres, including both the prevention of

drug trafficking and drug addicts treatment with

subsequent lifelong rehabilitation.

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