Smuggling in Sensitive Goods and Resources: Features of Objective

Aspect of Crime

Vladislava Konstantinovna Zaigraeva

Peoples' Friendship University of Russia, Department of Criminal Law, Criminal Proceedings and Criminalistics of the

Institute of Law, Moscow, Russia

Keywords: Smuggling, objective aspect of crime, sensitive goods and resources, illegal movement, customs border of

the Eurasian Economic Union, state border of the Russian Federation with the state members of the

Eurasian Economic Union.

Abstract: Considerable changes in the legislation of the Russian Federation related to the formation of the Eurasian

Economic Union and arising corrections of smuggling norms in the Criminal Code of the Russian

Federation (hereinafter - the CC of the RF) create certain difficulties for executor of law on the issues of

qualification of smuggling of sensitive goods and resources, including those associated with the lacking

definition of “illegal movement across the state border of the Russian Federation with the member states of

the Eurasian Economic Union”. The article is devoted to the study of features of objective aspect of

smuggling of sensitive goods and resources. The main purpose is to reveal the features of Article 226.1 of

the Criminal Code of the Russian Federation based on the analysis of notions used for characteristics of its

objective aspect. It is established that it is inadmissible to use the notion of the illegal movement across the

customs border that is determined by clause 25, Part 1, Article 2 of the Customs Code of the Eurasian

Economic Union in case of illegal movement across the state border of the Russian Federation with the

member states of the Eurasian Economic Union. The author’s definition of illegal movement across the state

border of the Russian Federation with the member states of the Eurasian Economic Union is offered.

1 INTRODUCTION

The current considerable changes in the legislation

of the Russian Federation related to the formation of

the Eurasian Economic Union and arising

corrections of smuggling norms in the Criminal

Code of the Russian Federation create certain

difficulties for law enforcement authorities on the

issues of qualification of smuggling of sensitive

goods and resources (Zaigraeva, 2019).

The principle of formal juridical security

supposing the accuracy and clarity of regulations

and being an integral element of the rule of law is a

necessary guarantee of efficient protection from

arbitrary prosecution, conviction and punishment in

the legislation.

We share the opinion of particular authors stating

that smuggling constitutes a threat in each country

(Kulish, Yunin, Us, Shapovalova, 2021).

Globalization processes lead to free movement of

goods across the customs border due to their hiding

from customs control that represents a threat to the

economic security of the state and requires searching

the measures to counteract the goods smuggling

(Andriichenko N, Reznik O., Tkachenko V, Marina

V. Belanuk M., Skliar Y., 2020).

Often, the forms of smuggling and its cost

effectiveness are determined by imperfect provisions

of law, their inconsistent use and differences in

various scopes of regulation (Kemp, Galemba,

2020), as well as by non-regulated activity of law

enforcement authorities on detection and

investigation of customs offenses (Ibragimov,

Kapsalyamov, Kapsalyamova, 2019)

The efficient achievement of purposes on

suppressing crimes in many aspects depends on the

building the system of implementation of provisions

of law (Albov, Batyukova, Kobzeva, Ponomareva,

2021). Particular authors consider the forensic

equipment and methods to be critically important in

suppressing smuggling (Usova, Malykhin, 2020).

The methods of illegal movement of the goods

across the customs border that are lacking in the

disposition of Article 226.1 of the CC of the RF

208

Zaigraeva, V.

Smuggling in Sensitive Goods and Resources: Features of Objective Aspect of Crime.

DOI: 10.5220/0010633900003152

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

208-213

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

should be recognized a deficiency of forming the

specified norm. To understand them, executors of

law have to analyze significant regulatory

framework for various branches of legislation

(international, customs, etc.) in the conditions of

lacking criteria on which the violations made should

be referred to the features of objective aspect of

smuggling.

The smuggling forming features previously

contained in Article 188 of the CC of the RF have

been developed by many generations of lawyers

both during the soviet period and after 1991, and are

based on pre-revolutionary legislation built on more

than a hundred year law enforcement practice.

The notion “illegal movement” used by the law-

maker instead of specific features is not explained in

the disposition of Article 226.1 of the CC of the RF.

The blanket version of Article 226.1 of the CC of the

RF makes reference to the norms of other branches

of legislation containing the notion of illegal

movement of the above items across the customs

border of the Customs Union and (or) the state

border of the Russian Federation.

The notion of illegal movement of the goods

contained in clause 25, Part 1, Article 2 of the

Customs Union of the Eurasian Economic Union

refers only to movement across the customs border

of the Customs Union but not the state border of the

Russian Federation and provides for wrongful nature

of acts only in cases when the fraudulent actions

relate the customs control and no other kinds of the

state control undertaken at the state border of the

Russian Federation.

2 MATERIALS AND METHODS

The methodological basis for the scientific article is

made up by a system of methods and techniques of

scientific knowledge pertaining to the jurisprudence

science. In particular, the comparative law, dialectic,

structural functional and logic legal methods were

used in the research.

3 RESULTS AND DISCUSSION

The objective aspect of smuggling of sensitive goods

and resources as provided by Part 1, Article 226.1 of

the CC of the RF should be deemed a socially

dangerous act of the subject expressed in the illegal

movement of sensitive goods and resources on a

large scale across the customs border of the Customs

Union in the framework of the Eurasian Economic

Union or the state border of the Russian Federation

with the member states of the Customs Union in the

framework of the Eurasian Economic Union.

The law maker included in the crime the

following features of the objective aspect: a socially

dangerous act (illegal movement), a place of crime

(the customs border of the Customs Union in the

framework of the Eurasian Economic Union or the

state border of the Russian Federation with the

member states of the Customs Union in the

framework of the Eurasian Economic Union).

The place of smuggling of sensitive good and

resources is the customs border of the Customs

Union in the framework of the Eurasian Economic

Union or the state border of the Russian Federation

with the member states of the Customs Union in the

framework of the Eurasian Economic Union.

Earlier, the customs border of the Customs

Union in the framework of the Eurasian Economic

Union was determined by the Customs Code of the

Customs Union through the notion of the Uniform

Customs Territory of the Customs Union, the part of

the territory of all member states of the Customs

Union, as well as artificial islands, facilities,

constructions and other objects located outside the

territories of the member states of the Customs

Union and with regard to which the member states

of the Customs Union have exclusive jurisdiction.

With the formation of the Eurasian Economic

Union, the notion “the customs border of the

Customs Union in the framework of the Eurasian

Economic Union” and “the state border of the

Russian Federation with the member states of the

Customs Union in the framework of the Eurasian

Economic Union” have become null and void, thus,

the actual place of illegal movement of sensitive

good and resources does not coincide with the place

of crime as provided by disposition of Article 226.1

of the CC of the RF that entails no element of crime

in the act.

In this connection, the reluctance of the law

maker to introduce the relevant terminological

amendments to Article 226.1 of the CC of the RF

and other norms of the CC of the RF, thus excluding

the acquittance of the persons involved in smuggling

for formal grounds, is bewildering. For details about

determination of the place of smuggling, see:

Zheludkov M.A., Slobin S.O. Disputable issues of

the criminal qualification in transit movement of

narcotic drugs in the territory of Russia (Zheludkov,

Slobin, 2021), and Zaigraeva V.K. To the issue of

determination of the place of smuggling of sensitive

good and resources (Zaigraeva, 2017).

Smuggling in Sensitive Goods and Resources: Features of Objective Aspect of Crime

209

Taking into account our position and the position

of particular authors (Nikolskaya, 2015, Podroikina,

Kruglikova, 2018) concerning immediate need in

bringing the terminology of the legislation of the

Russian Federation in line with the international

treaties and acts constituting the law of the Eurasian

Economic Union, as well as concerning no

impediments to thereto, hereinafter we will use the

updated terminology in full compliance with the

specified acts, namely: “member states of the

Eurasian Economic Union”, “customs territory of

the Eurasian Economic Union”, “customs border of

the Eurasian Economic Union”, etc.

The notions of movement across the customs

border of the Eurasian Economic Union and illegal

movement across the customs border of the Eurasian

Economic Union are defined by the Customs Union

of the Eurasian Economic Union:

“movement of goods across the customs border

of the Eurasian Economic Union - import of goods

to the customs territory of the Eurasian Economic

Union or export of goods from the customs territory

of the Eurasian Economic Union (subclause 27,

clause 1, Article 2)”;

“illegal movement of goods across the customs

border of the Eurasian Economic Union - movement

of goods across the customs border of the Eurasian

Economic Union beyond the places through which

the movement of goods across the customs border of

the Eurasian Economic Union should or can be

made according to Article 10 of the Customs Code

of the Eurasian Economic Union, or beyond the

working time of the customs body located in these

places, or by hiding from customs control, or by

inaccurate customs declaring procedure or non-

declaring the goods, or by using the documents

containing unreliable information about the goods,

and (or) by using the counterfeited identification

means or those related to the other goods (subclause

25, clause 1, Article 2)”.

It should be noted here that the Customs Code of

the Customs Unit (hereinafter - the CC of the CU)

(effective until January 01, 2018, namely, until the

Customs Code of the Eurasian Economic Union

comes into force) gave the other definition of

“illegal movement of goods across the customs

border” - “movement of goods across the customs

border beyond the established place or beyond the

established working time of the customs bodies in

these places, or by hiding from customs control, or

by inaccurate customs declaring procedure or non-

declaring the goods, or by using the documents

containing unreliable information about the goods,

and (or) by using the counterfeited identification

means or those related to the other goods, as well as

attempt of such movement (subclause 19, clause 1,

Article 4)”.

Therefore, the given definition made equal the

commitment of all possible actions aimed at illegal

movement of goods across the customs border and

the attempt of such movement.

Along with this, the situation has changed today,

as the Customs Code of the Eurasian Economic

Union provides no attempt of illegal movement

across the customs border.

The notion of import of goods to the customs

territory of the Eurasian Economic Union is defined

as “commitment of actions related to customs border

crossing, as a result of which the goods have arrived

at the customs territory of the Eurasian Economic

Union in any way, including sending by the

international mail, use of pipeline service and power

lines, until they are released by the customs bodies

(subclause 3, clause 1, Article 2)”.

Export of goods from the customs territory of the

Eurasian Economic Union means “commitment of

actions aimed at export of goods from the customs

territory of the Eurasian Economic Union in any

way, including sending by the international mail, use

of pipeline service and power lines, including the

customs border crossing (subclause 5, clause 1,

Article 2)”.

G.A. Rusanov aptly notes that “the law maker

relates the movement across the customs border to a

system of actions, i.e. defines the movement not as a

single action but as a certain process in tact

(Rusanov, 2011).

It should be also noted here that the CC of the

CU gave another definition of “export from the

customs territory”.

Export of goods from the customs territory of the

Eurasian Economic Union meant “commitment of

actions aimed at export of goods from the customs

territory of the Eurasian Economic Union in any

way, including sending by the international mail, use

of pipeline service and power lines, till the actual

customs border crossing (subclause 4, clause 1,

Article 4)”.

At this, the content of illegal movement across

the customs border of the Eurasian Economic Union

used in Article 16.1 of the Administrative Offense

Code of the Russian Federation is of interest and

includes: “violation of the arrival procedure of goods

and (or) international transportation means at the

customs territory of the Eurasian Economic Union

by importing outside of the places of movement of

goods across the customs border of the Eurasian

Economic Union or other places established by the

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legislation of the member states of the Eurasian

Economic Union, or beyond the working time of the

customs bodies, or commitment of acts directly

aimed at actual crossing of the customs border of the

Eurasian Economic Union by goods and (or)

international transportation means when leaving the

customs territory of the Eurasian Economic Union

outside of the places of movement of goods across

the customs border of the Eurasian Economic, or

other places established by the legislation of the

member states of the Eurasian Economic Union, or

beyond the working time of the customs bodies, or

without the customs body permit; hiding the goods

from customs control by using the hiding places or

by any other means that prevent detecting the goods;

or by making the goods with the appearance of the

other goods when moving them across the customs

border of the Eurasian Economic Union; notification

to the customs body of false information about

quantity of packaging units, their marking, names,

gross weight and (or) volume of goods when

arriving at the customs territory of the Eurasian

Economic Union, leaving the customs territory of

the Eurasian Economic Union, or movement of

goods for customs transit, or to the temporary

storage facility by submitting invalid documents or

using the counterfeited identification means or

genuine identification means related to the other

goods and (or) transport means for these purposes”.

According to the note to Article 16.1 of the

Administrative Offense Code of the Russian

Federation, the administrative responsibility is

imposed for submission not only of the documents

containing unreliable information, but also of the

counterfeited documents received illegally, the

documents related to the other goods and (or)

transport means, as well as other documents having

no legal force.

However, this definition of the features of

objective aspect of smuggling of sensitive goods and

resources relates only to the illegal movement of

goods across the customs border of the Eurasian

Economic Union but not across the state border of

the Russian Federation with the Republic of Belarus

and the Republic of Kazakhstan as it is based on the

provisions of the Customs Code of the Eurasian

Economic Union that regulate the relations

connected with movement of goods across the

customs but not state border of the Russian

Federation (clause 1, Article 1 of the Customs Code

of the Eurasian Economic Union).

According to Order of the President of the

Russian Federation No. 880 dated July 01, 2011 “On

Cancellation of Agreed Kinds of Control at the State

Border of the Russian Federation with the Republic

of Belarus and the Republic of Kazakhstan”, starting

from July 01, 2011, “the customs, transport,

sanitary-quarantine, veterinary, and quarantine

phytosanitary control at the state border of the

Russian Federation with the Republic of Belarus and

the Republic of Kazakhstan” has been canceled.

Control over the movement of goods, cargoes

and animals across the state border of the Russian

Federation with the member states of the Eurasian

Economic Union is performed by the border

authorities of the Federal Security Service of the

Russian Federation according to Law of the Russian

Federation No4730-1 dated April 01, 1993 “On the

State Border of the Russian Federation” and

Statement on border control for persons, transport

means, cargoes, goods and animals passing the state

border of the Russian Federation approved by

Decree of the Government of the Russian Federation

No. 546 dated June 04, 2012.

Along with this, the feature of illegal movement

of sensitive goods and resources across the state

border of the Russian Federation is not determined

in the mentioned regulatory acts.

There are no relevant explanations in Decree of

the Plenum of the Supreme Court of the Russian

Federation No. 12 dated April 27, 2017 “On Judicial

Practice on Smuggling Cases” (hereinafter - the

Decree of the Plenum).

Lacking legal definition of illegal movement of

sensitive goods across the state border of the

Russian Federation can be the reason for relieving

from the responsibility of the persons exporting the

sensitive goods of unknown and criminal origin to

Kazakhstan and Belarus for their future export

outside the Eurasian Economic Union.

We should agree with the opinion of M.P.

Kuznetsov stating that “the way out appears to be

the normative consolidation of the legal unified

notion of illegal movement of sensitive goods across

the state border between the states for all member

states of the Eurasian Economic Union” (Kuznetsov,

2015).

In our opinion, for the purposes of elimination of

legal uncertainties in determining the features of

objective aspect of crime as provided by Article

226.1 of CC of the RF, the mentioned article should

be supplemented with the provision defining the

notion “illegal movement across the state border of

the Russian Federation with the member states of the

Eurasian Economic Union”.

In addition, according to clause 10 of the Decree

of the Plenum on criminal cases on the crimes

provided by Article 226.1 of CC of the RF, in the

Smuggling in Sensitive Goods and Resources: Features of Objective Aspect of Crime

211

cases when illegal movement of the smuggling item

is performed not only across the customs border of

the Eurasian Economic Union but also across the

state border of the Russian Federation with the

member states of the Eurasian Economic Union; if

there is a common intent of the person to commit the

above listed actions, the committed action should be

considered as the same offense.

It is impossible not to agree with the position of

the Supreme Court of the Russian Federation, as it

was mentioned above, in case of illegal movement

of the smuggling items by a person across the

customs border of the Eurasian Economic Union or

the state border of the Russian Federation with the

member states of the Eurasian Economic Union, the

offenses differ not only by the place of crime, end

time, but also including the method of commitment.

Based on the above, the point of view of A.V.

Fedorov expressed in consideration of issues of the

criminal evaluation of acts when smuggling of the

same items is committed many times, including

across different borders, that states “the common

intent to commit different (but successively related)

crimes gives no reasons for qualification of these

crimes as the same crime, is considered to be correct

(Fedorov, 2017).

In this connection, we think that even having the

common intent, there are no reasons to suppose that

commitment of the above actions should be

considered as the same crime.

Based on the above, as well as for establishing

the enhanced responsibility for illegal movement,

including of sensitive goods and resources, not only

across the customs border of the Eurasian Economic

Union but also across the state border of the Russian

Federation with the member states of the Eurasian

Economic Union, we think it reasonable to

supplement Part 2, Article 226.1 of CC of the RF

with the qualifying feature:

“c) by a person who previously committed illegal

movement across the customs border of the Eurasian

Economic Union or the state border of the Russian

Federation with the member states of the Eurasian

Economic Union”.

4 CONCLUSIONS

To conclude the conducted research, it should be

noted that version of Article 226.1 of CC of the RF

does not correspond to Resolution of the

Constitutional Court of the Russian Federation

No. 15-П dated July 13, 2010 stating that when

forming the legal norms, the law maker must comply

with the requirements of security, clarity, and

unambiguousness of such norms, their agreement in

the system of the effective legal regulation, any

crime must be clearly determined in the law so that

based on the text of the relevant norm, everyone

could foresee the criminal consequences of his acts

(omissions). We should agree with the position of

Lepina T.G. Stating that the structure of Article

226.1 of CC of the RF could be hardly called correct

(Lepina, 2020). L.P. Klebanov notes that the

approach to developing new smuggling norms is

“mechanical” (Klebanov, 2012).

In view of no customs control at the site of the

state border of the Russian Federation neighboring

with the state borders of Belarus and Kazakhstan,

commitment of fraudulent acts during movement of

the mentioned items across the state border of

Russia with the Republic of Belarus and

Kazakhstan, if such acts were aimed at misleading

the state supervision bodies, does not fall within

Article 226.1 of CC of the RF due to formal causes.

To remove difficulties in applying the norms, as

well as to ensure their extensive and inconsistent

interpretation, the norm on smuggling of sensitive

goods and resources we consider in our research

should include clear definitions of what constitutes

illegal movement of such goods across the customs

border of the Eurasian Economic Union and the state

border of the Russian Federation with the member

states of the Eurasian Economic Union.

To remove gaps and ambiguity of interpretation

of Article 226.1 of CC of the RF in terms of

determination of illegal movement across the state

border of the Russian Federation with the member

states of the Eurasian Economic Union, the notion of

the mentioned movement and proposal to

supplement Article 226.1 of CC of the RF with note

5 as follows are given:

“5. For the purpose of this Article, illegal

movement across the state border of the Russian

Federation with the member states of the Eurasian

Economic Union is the movement of goods and

other items outside the pass points of the state border

of the Russian Federation or beyond the working

time of the customs bodies performing the state

control (supervision) at the state border of the

Russian Federation, or by hiding from the state

control, by fraudulent using the documents

containing unreliable information, falsified, invalid

documents, or without marking and (or) applied

information as provided by the legislation of the

Russian Federation, as well as without document for

goods and other items”.

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The results and conclusions of the research can

be used in the practical activity of the customs and

law enforcement authorities, as well as in

improvement of the criminal legislation.

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