Potent Doubts

Chemists found an unconstitutional article in the Criminal Code

Yesterday, on the third attempt, the Perovsky Court of Moscow began to consider the scandalous “chemists’ case” - against the leaders of the capital’s Sofex company, Yana Yakovleva and Alexei Protsky. They are accused by employees of the Federal Drug Control Service (FSKN) of illegal sale of potent substances. According to the drug police, Sofex supplied raw materials to drug manufacturers under the guise of wholesale trade in chemicals. The businessmen themselves categorically reject the claims of the Federal Drug Control Service, considering them complete nonsense, and have repeatedly stated that they began to persecute them after they refused to share profits with some police officers.

The court has already twice returned this case to the prosecutor's office to correct numerous errors in the prosecution materials, noting that they do not indicate the places, times and even the very essence of the allegedly committed crimes. It is not yet known whether the process will get off the ground the third time. However, now the accused and their lawyers intend to put forward counterarguments not only regarding the specific claims of the drug police, but also in general about the legality of the application of Art. 234 of the Criminal Code of the Russian Federation (illegal trafficking of potent or toxic substances for the purpose of sale), both within the framework of this case and in legal practice in general.

There is no such law

Fighting off unfounded, in their opinion, accusations of connections with the drug mafia, the chemists involuntarily looked at the problem somewhat wider than the boundaries of their criminal case and were surprised to discover that the crime of which they are accused - under Article 234 of the Criminal Code - does not exist at all Maybe. It turned out, or rather, this has been the case for quite a long time, but simply no one thought about it, that in our country there are no legitimate lists of potent substances at all. That is, at the state, including legislative, level, it is not determined which acts are classified as crimes in this category. Accordingly, the chemists believe, there is simply nothing to judge them for. Now the court will apparently have to deal not only with the materials of a specific criminal case, but also resolve a legal conflict.

The still current practice of applying Article 234 of the Criminal Code in Russia adds to the scandalous nature of this situation. Such cases are usually brought by FSKN officers, and they use lists of potent substances compiled by the Standing Committee for Narcotics Control (PKKN). However, this structure has long been a social organization in its status - this fact is known, but until now no attention has been paid to it. However, it was during the “chemists’ case” that the accused and their lawyers came to the conclusion that this situation directly violates the Constitution of the Russian Federation, according to which the rights and freedoms of citizens can only be limited by federal law. Russian laws, including the Criminal Code, do not say anything about who should determine what potent substances are. Moreover, the procedure for legal (legal) circulation of potent substances is not stipulated by law or even at the regulatory level. And if so, then illegal trafficking cannot exist. After all, illegal trade is one that violates the rules of the legal trade.

Following this logic, the fate of hundreds or even thousands of other people who find themselves in a similar situation, as well as the reputation of the Federal Drug Control Service, will now depend on the outcome of the Sofex case. After all, drug police have been using and continue to actively use Art. 234 of the Criminal Code, initiating criminal cases on it. Suffice it to say that in the first three months of 2007 alone, almost 1,200 criminal cases were sent to the courts in which this article of the Criminal Code appeared. If the leaders of Sofex can prove that they are right, then on the same grounds, all other citizens convicted or accused of illegal trafficking in potent substances may well demand rehabilitation for illegal prosecution.

These scary chemists

The criminal case against the two leaders of Sofex is only part of the epic, which its participants call the “case of the chemists.” Almost simultaneously throughout the country, as was the case with veterinarians and doctors whom the police accused of selling potent drugs that they used in their work, a number of similar criminal cases were initiated against representatives of companies engaged in the production or wholesale trade of industrial chemicals . The police decided that many of them were breaking the law because they did not have certain licenses. They are usually blamed for the lack of permits to engage in pharmaceutical activities or even licenses from the Ministry of Emergency Situations or firefighters to store hazardous chemicals. The chemists themselves responded with indignation that the drug police were outright distorting the facts, since the persecuted businessmen had nothing to do with pharmaceutical activities, but worked only with industrial enterprises, and for this they had all the permits and licenses. At the same time, all other similar investigations followed the scheme tested in the Sofex case, since it turned out to be the largest and in many ways precedent-setting.

The Moscow department of the Federal Drug Control Service opened a criminal case against the leaders of Sofex, Yana Yakovleva and Alexei Protsky, in May 2005, and at first they themselves did not even suspect it. The businessmen learned the details of the investigation only a year later, in the summer of 2006, when both were arrested on charges of illegal sale of potent substances, illegal entrepreneurship and money laundering (the last two charges stemmed from the first - since they acted illegally, it means they illegally received income and washed them).

In the fall of 2006, the Federal Drug Control Service officially announced the exposure of the leaders of Sofex, who, according to investigators, had been systematically engaged in the illegal sale of the substance “ethyl ether” since 1999, without having a pharmaceutical license. It was noted that the company sold this chemical to front companies throughout the country, which in turn supplied it to drug dealers who produced the potent drug methadone from ether. In the company itself, as reported, 8 tons of ethyl ether were seized, from which, as follows from the press release of the Federal Drug Control Service, “about 1 ton of various synthetic drugs could be produced, which is approximately 10 million doses.” It also turned out that it was possible to identify the “villains” from Sofex during the investigation of another case - a certain Shulikov, who produced methadone at home and then sold it to schoolchildren and students. The raw materials - that same ether - as the police claimed, Shulikov bought at Sofax.

An ephemeral matter

The arrested themselves and their lawyers were able to formulate their objections to the police’s arguments only at the beginning of this year, when, in anticipation of the transfer of the case to the court, they began to familiarize themselves with the investigation materials. According to them, the entire previously stated version of the Federal Drug Control Service turned out to be complete nonsense, which they told reporters a little later, when the court released them on their own recognizance. Yana Yakovleva and Alexey Protsky claim that they never knew any Shulikov, and their company never sold ethyl ether to this citizen, and there is no mention of Shulikov in the criminal case materials. They also stated that the case was grossly fabricated - their company has never been involved in pharmaceutical activities, but specializes in industrial supplies of chemicals, and their clients, among others, are many of the largest chemical plants, the Ministry of Emergency Situations and even Moscow State University. Therefore, as the businessmen stated, confirming this with various instructions and explanations from various departments, their company did not need a license for pharmaceutical activities, and no one would have given it to them, since they are not involved in this and do not intend to. They have all other necessary licenses - from almost a dozen departments, including for working with dangerous chemicals and precursors. (Precursors are substances that can be used in the preparation of drugs, and therefore their movement across borders is controlled by the state. These include many substances common in everyday life and industry, such as acetone, toluene, potassium permanganate, various acids, solvents, etc. .d.)

In addition, the businessmen attracted a number of chemist scientists to their speeches, who again called the police claims that drugs could be made from ethyl ether nonsense. They noticed that ethyl ether is a type of solvent, and actually nothing can be produced from it; it can only be used by drug traffickers as an accompanying reagent, like all other precursors. At the same time, the managers of Sofex always noted that the main profile of their company’s work is the production and supply of completely different substances (silicones), and ethyl ether for them has always been a “by-product” product, which accounted for only tenths of a percent in the company’s turnover . As for the content of the criminal case, as the “chemists” and their lawyers said, it is based on the company’s official accounting documents seized by the police during the search. It followed from them that over the course of several years, Sofax concluded about 500 official transactions for the supply of ethyl ether, and not to front companies, but to large enterprises and government agencies, but drug police investigators considered this information to be criminal episodes.

However, Yana Yakovleva and Alexei Protsky were not perplexed about the charges brought forward. They told reporters about the background of the case. According to them, the criminal case arose after several employees of the Federal Drug Control Service began negotiating with them about “cooperation.” It was supposed to be expressed in the transfer of part of the profits to the police, as well as the fulfillment of some of their instructions - for example, sending a batch of “acetic anhydride” (a precursor necessary in the production of heroin) to Tajikistan. The businessmen did not agree, and after that their troubles began.

The courage of the police

The main passions for the “chemists’ case” began to flare up last spring, after the leaders of Sofex, desperate to prove the absurdity of the charges to law enforcement agencies, began knocking on all other authorities and public organizations. They were able to win over well-known human rights activists, the Public Chamber of the Russian Federation and a number of State Duma deputies. Everyone who was able to be involved, having studied the case materials and a lot of related documents on such a specific issue, also came to the conclusion that the claims of the drug police look at least strange. Many of the famous people who came to the defense of the “chemists” openly stated that this whole epic looks like an attempt by the drug police to simply take control of the entire industry. As a result, the Public Chamber and deputies initiated the process of preparing a whole package of amendments to the current legislation and regulations that would eliminate the “legal vacuum” discovered around Article 234 of the Criminal Code of the Russian Federation. This process is currently ongoing. But it was during this process that, while studying the existing regulatory and legislative framework on this issue, the defense of the “chemists” represented by lawyers Evgeny Chernousov (at one time he “fought” the Federal Drug Control Service over attacks on veterinarians and doctors) and Yuri Kastanov raised the issue of the constitutionality as such of Article 234 of the Criminal Code of the Russian Federation.

It is noteworthy that until recently, representatives of the Federal Drug Control Service stood firm in their position regarding the “chemists’ case” - the guilt of the Sofex leaders is obvious, and the fuss around this case was artificially raised. However, the drug police reacted very painfully to the attempts of the accused and their lawyers to explain their position. Thus, the leaders of the FSKN either told news agencies that the “case of the chemists” is so simple that “it’s not worth a damn,” then suddenly announced that the actions of the lawyers of the accused would do nothing less than “discredit the FSKN authorities.” The drug police did not explain how exactly three people - two ordinary businessmen and one lawyer - could belittle the honor and dignity of such a powerful intelligence service. Even the judges got it from the drug police. When the Perovsky court once again returned the Sofex case to the prosecutor’s office to eliminate shortcomings, Deputy Director of the Federal Drug Control Service Vladimir Zubrin told news agencies: “In order to bring a person to criminal responsibility, you need to have courage. I think in this case our judges lack courage.” That is, it turned out that the most courageous people were the police, and the judges simply chickened out. Although the police did not begin to substantively argue with the arguments of the accused themselves.

Moreover, it turned out that the head of the Federal Drug Control Service, Viktor Cherkesov, is even personally interested in the progress of the “chemists’ case.” At one of the meetings of the Public Chamber of the Russian Federation, where this epic was discussed, a well-known human rights activist, the chairman of the Moscow Helsinki Group, Lyudmila Alekseeva, said that Mr. Cherkesov personally tried to persuade her not to interfere in the “chemists’ case,” explaining that it was too “dirty business,” and “in general, the public doesn’t need it.”

"Lame" article

At first, such a painful reaction of the drug police to a seemingly ordinary criminal case seemed very strange. However, it seems that she still found an explanation. As it turned out quite recently, in fact, the Federal Drug Control Service fully understood the controversial situation around Article 234 (and, consequently, around the Sofex case). At least this is what is being discussed in the bill received from the Federal Drug Control Service for approval and revision by the government of the Russian Federation. The essence of the bill is extremely simple - to add Art. 234 of the Criminal Code of the Russian Federation with the following note: “Lists of potent and toxic substances for the purposes of this article and other articles of this code are established by the government of the Russian Federation.” Moreover, the explanatory note to the bill, among other things, explains why such an amendment is extremely necessary: ​​“Currently, bringing to criminal liability persons who have committed crimes related to the illicit trafficking of potent or toxic substances is virtually impossible, since there is no other list of these substances in order to bring there is no criminal liability for crimes provided for in Article 234 of the Criminal Code of Russia, except for the lists of PKKN.”

At first glance, the amendment looks logical - at one time, Article 228 of the Criminal Code of the Russian Federation, relating to drug-related crimes, was also corrected in the same way. However, the current bill automatically calls into question the legality of the application of Article 234 in recent years, including in the “chemists’ case.”

“Regardless of whether the court in this particular case will take into account the entire ambiguity of the situation according to the legal interpretation of Article 234 of the Criminal Code or will limit itself only to the investigation materials, the topic of the legality of this norm remains open,” lawyer Evgeny Chernousov said in an interview with Vremya Novostey. - Moreover, the problem is not limited only to how lawfully this article has been applied so far, although this is extremely important, because we are talking about thousands of convictions. The current situation is further complicated by the fact that the amendments proposed by the Federal Drug Control Service to the Criminal Code are completely the same. and they do not allow it. The fact is that national legislation related to the drug problem is primarily determined by international standards - International Conventions (1961, 1971 and 1988), ratified by Russia. In the legislation of the vast majority of countries in the world, there is in principle no such concept as “potent substances”. International standards, which all countries participating in the conventions are obliged to comply with, define substances that should be subject to state control, such as narcotic, psychotropic and other substances. their precursors. Moreover, the conventions contain lists of substances that national governments are recommended to take under control. In Soviet times, at the national level, such lists were formed by the PKKN; this organization then had state status and officially existed under the Ministry of Health. After the collapse of the USSR, this structure lost its state status, becoming a non-profit organization. In 1996, a new Criminal Code was adopted. In connection with these changes, since 1998, lists of narcotic substances began to be approved by government resolutions, which was required by the norms of the Constitution. However, they simply seemed to have forgotten about “potent substances.” Art. 234 at that time was used by law enforcement agencies extremely rarely, and if such a question arose, then by inertia they continued to use the lists of the PKKN, which, by the way, continued to make changes to them all the time. When the Federal Drug Control Service was created, the work intensified - thousands of cases began to be initiated, but no one simply remembered how legal the existing lists of “potent substances” were. Criminal cases were initiated, people were convicted. In principle, it may seem strange that so far no one has raised this issue - not even the accused themselves, their lawyers, or even the prosecutor's office, which is supposed to monitor the implementation of the law. However, everything turned out to be very simple. On the example of the case of SofEx, it was found that no one - neither judges, nor prosecutors nor investigators, even more so ordinary citizens - was not even suspected that this problem is legally not resolved at all. After all, drugs and precursors are a very specific topic, requiring professional knowledge in the field of chemistry, regulating pharmaceutical activity, a thorough study of the same international conventions. As a result, it turned out that the police, according to the practice of hungry from Soviet times, began to initiate criminal cases under Article 234, and all other participants in this process simply did not have time or could not figure out such a difficult topic - complex and unknown are given in such criminal cases Simple lawyers of the formula and concepts. Meanwhile, I remind you that the same international conventions do not say anything about “potent substances”, in international law there is no such thing at all. It was introduced by the Soviet regime under Stalin. Moreover, initially in the Criminal Code, it was not about “potent and toxic substances”, as it is now, but about “potent poisonous”. Later, the letter “and” was removed from the Criminal Code, as a result, “poisonous potent” substances were divided into two different groups, and it was already talking about completely different chemical compounds. Actually, from here the problem began. Separate lists have already been compiled - potent and toxic substances. And they have already begun to supplement quite arbitrarily - often without a serious scientific research, and recently based on the basis of literally simply from the wishes of the FSKN. As a result, it turned out that for some reason, substances were recorded in the potential, which, according to international law, should be considered narcotic, and substances that are considered precursors throughout the world, although they themselves cannot produce any strong impact on the human body. As a result, now, in general, with the very concept of “potent substances”, complete confusion has occurred. For example, this group is ranked (according to the lists of the same PKKN) ethyl ether, which, in effect on the human body, is much weaker than the same gasoline. Simply put, with gasoline, it is much easier to poison than the ether. Accordingly, it turns out that for the "legalization" of Art. 234, following logic, it is necessary to perform a thorough analysis of the list of substances. But here another problem arises - it is necessary to accurately correctly determine what is meant by the concept of “potent substance” and by what parameters to evaluate it. Many experts, for example, do not understand what the difference is between “potent” and drugs. This work is very difficult, which will undoubtedly drag on for a long time. In this situation, obviously, the most simple and acceptable from a legal point of view is strictly following international norms - not to invent a bicycle, but to divide all substances controlled by the state into subspecies agreed in the conventions - narcotic, psychotropic and their precursors. In the current Russian legislation, their turnover has long been clearly and clearly regulated.

Victor PAUKOV