Criminal Code on illegal storage and transportation of precious metals, natural gems or pearls. Theory of everything Article 191 part 2
Making a transaction related to precious metals, natural precious stones or pearls, in violation of the rules established by the legislation of the Russian Federation, as well as illegal storage, transportation or shipment of precious metals, natural precious stones or pearls in any form, condition, except for jewelry and household products and scrap of such products committed on a large scale - shall be punishable by compulsory labor for a term of up to five years, or by deprivation of liberty for the same term, with a fine in the amount of up to 500 thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to three years. or without it.
Part 2 Art. 191 of the Criminal Code of the Russian Federation
The same acts committed by an organized group or a group of persons by prior agreement, are punishable by forced labor for a term of up to five years, or by deprivation of liberty for a term of up to seven years, with a fine in the amount of up to one million rubles, or in the amount of the wage or other income of the convicted person for the period up to five years or less.
Commentary on Art. 191 of the Criminal Code of the Russian Federation
Commentary edited by Esakov G.A.
1. Subject of the crime: a) precious metals – gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium). Precious metals can be in any state, form, including in native and refined form, as well as in raw materials, alloys, semi-finished products, industrial products, chemical compounds, coins, scrap and production and consumption waste; b) precious stones - natural diamonds, emeralds, rubies, sapphires and alexandrites; c) natural pearls in raw (natural) and processed form; d) unique amber formations.
The subject of the crime does not include jewelry and household items and scrap of such items. The absence of an assay mark on a piece of precious metal or a certificate for a cut stone does not turn them into the subject of a crime. However, uncut, but pre-machined stones cannot be classified as jewelry.
2. Criminal liability under Art. 191 of the Criminal Code comes for any transactions with precious stones and precious metals made in violation of the law. The illegality of such transactions may be due to the illegality of their extraction and production, the lack of a license to perform such actions. Transactions with the subject of a crime concluded between individuals are recognized as illegal. Buying organizations and individual enterprises are prohibited from buying rough diamonds, raw natural pearls and precious stones, etc. Mined and produced precious metals, with the exception of nuggets, after the necessary processing, must be sent for refining to organizations included in the list approved by the Government of the Russian Federation. The procedure for performing operations with mineral raw materials containing precious metals, prior to refining, is determined by the Government of the Russian Federation.
3. Illegal storage, transportation, transfer will take place when these items were illegally obtained or produced, stolen, obtained as a result of any other crime or acquired as a result of an illegal transaction.
4. Illegal circulation of precious metals, natural precious stones or pearls entails criminal liability only if it is carried out on a large scale (over 2.25 million rubles).
5. Theft of precious metals or precious stones with the subsequent conclusion of illegal transactions with them requires qualification for the totality of crimes.
6. Illegal (in the absence of a license) mining and production of precious metals and stones with their subsequent storage, shipment and transportation are qualified according to the totality of Art. 171 and 191 of the Criminal Code (except for the situation when these actions are performed by an individual entrepreneur, since a license for the extraction and production of precious metals and stones is issued only to organizations).
7. Illegal manufacture by citizens of jewelry, dentures and other household items from precious metals and precious stones owned by the manufacturer or customer, as well as the manufacture of these items from jewelry and other household items consisting of precious metals and precious stones, as well as scrap of such products, shall not can be considered as illegal circulation of precious metals and stones. Such actions, if there are relevant signs, must be qualified under Art. 171 of the Criminal Code.
Commentary on Article 191 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. The direct object of the crime is public relations that develop in the sphere of state regulation of the circulation of precious metals, natural precious stones and pearls.
The subject of the crime are precious metals, natural precious stones and pearls. In accordance with Art. 1 of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” precious metals include gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium) in any state and form . Natural precious stones include natural diamonds, emeralds, rubies, sapphires and alexandrites in raw (natural) and processed form, as well as unique amber formations equated to precious stones in the manner established by the Government of the Russian Federation (Decree of the Government of the Russian Federation of January 5, 1999 No. N 8 “On approval of the procedure for classifying unique amber formations as precious stones”). Pearls as the subject of a crime in the composition under consideration include natural pearls in raw (natural) and processed form: sea pearls of the “oriental” variety measured in carats, other varieties of sea pearls, as well as freshwater (river) pearls.
Imitation pearls and perforated (string) pearls, as well as jewelry and household products made of precious metals, natural precious stones and pearls, and scrap of such products are excluded from the crime objects. Jewelry includes jewelry of various types and purposes; to household items - items intended for table setting, room decoration; used for religious, decorative and dental purposes or to perform various ceremonies or rituals; money and anniversary signs, medals, etc. (Regulations on the procedure for classifying items containing precious metals as jewelry, approved by Order of the Committee of the Russian Federation on Precious Metals and Precious Stones dated October 30, 1996 N 146). Scrap jewelry and household products include all products of this kind that are unsuitable for any reason for their intended use.
2. The objective side is characterized by alternatively specified activities, united under the general concept of illicit trafficking in precious metals, natural precious stones or pearls.
As the first alternatively indicated action, the law names the conclusion of a transaction related to precious metals, natural precious stones or pearls, in violation of the rules established by law. This implies a violation of the norms of the current legislation relating to the restrictions that are established for transactions of this kind (Federal Law “On Precious Metals and Precious Stones”; Decree of the Government of the Russian Federation of June 27, 1996 N 759 “On Approval of the Regulations on Transactions with Natural precious stones on the territory of the Russian Federation”; Decree of the Government of the Russian Federation of June 30, 1994 N 756 “On Approval of the Regulations on Transactions with Precious Metals on the Territory of the Russian Federation”). There are four types of such restrictions. They may: 1) relate to the type and condition of precious metals, natural precious stones or pearls, in respect of which a transaction is allowed; 2) provide for special places for making such transactions; 3) establish a limited list of entities that are entitled to make such transactions; 4) restrict the freedom of choice of the counterparty of the transaction by requiring the priority sale of precious metals, natural gemstones or pearls to a specially authorized federal executive body or authorized executive bodies of constituent entities of the Russian Federation.
Making transactions with jewelry and household products is not a criminal offense even in the case of handicraft (illegal) production of such products, but does not exclude liability for illegal storage of raw materials for their manufacture.
On the basis of a transaction, actions can be qualified only with those precious metals, natural precious stones or pearls that are in the legal possession of a person; making transactions with the specified items that are in unlawful possession is not criminal in itself, but it can be qualified on another basis of the corpus delicti in question - “illegal possession”.
Three other alternatively specified acts are similar in nature and consist in the illegal possession, transportation or transfer of precious metals, natural gems or pearls. A sign of illegality means the unlawful presence of these items with a person, i.e. finding them not on the right of ownership (clause 6, article 2, article 20 of the Federal Law “On Precious Metals and Precious Stones”) and not in other legal possession. Possession involves any act of holding a person with precious metals, natural gems or pearls for some time. Such items may be located in a dwelling, room, other storage, specially equipped hiding places, as well as in any other place that ensures their safety for a certain period of time. Transportation should be considered the movement of objects of crime from one place to another with the direct participation of a person in any mode of transport; Carrying these items with you during the trip cannot be considered as transportation and should be qualified as storage. Transfer should be understood as the movement of objects of crime from one place to another, but without the direct participation of the person, i.e. using postal service or other means of communication and communication (for example, courier delivery).
3. The composition of the crime is formal; the crime is considered completed from the moment of the transaction, the beginning of storage (in this form the crime is ongoing), the beginning of transportation or the delivery of items to the appropriate organization for shipment.
4. The subjective side is characterized by direct intent.
5. The subject of the crime is a person who has reached the age of 16 years.
6. A qualified corpus delicti (part 2) is characterized by the commission of an act in respect of precious metals, natural precious stones or pearls on a large scale (paragraph “b”) or the commission of an act by a group of persons by prior agreement or an organized group (paragraph “c” ). A large amount is recognized as the total value of precious metals, natural precious stones or pearls that have become objects of illegal circulation, exceeding 1.5 million rubles. (Note to Article 169 of the Criminal Code).
Illicit trafficking in precious metals, natural gems or pearls (Article 191 of the Criminal Code of the Russian Federation)
An object crimes - public relations regarding the legal circulation of precious metals, natural precious stones or pearls.
As subject acts are respectively precious metals, natural gems, pearls.
According to Art. 1 of the Federal Law of March 26, 1998 No. 41-FZ "On Precious Metals and Precious Stones" to precious metals include gold, silver, platinum and the platinum group metals (palladium, iridium, rhodium, ruthenium and osmium). This list of precious metals can only be changed by federal law. Precious metals can be in any state, form, including native and refined form, as well as in raw materials, alloys, semi-finished products, industrial products, chemical compounds, jewelry and other products, coins, scrap and production and consumption waste. Gems- natural diamonds, emeralds, rubies, sapphires and alexandrites, as well as natural pearls in raw (natural) and processed form. Unique amber formations are equated to precious stones in the manner established by the Government of the Russian Federation. This list of gems can only be changed by federal law.
Pearls are essentially also related to precious stones. However, since modern technologies allow you to make artificial pearls, so it is highlighted separately. To pearls as the subject of a crime Art. 191 applies only to pearls "oriental" and river, the mass of which is measured in carats. Other types of pearls are not the subject of the crime in question.
The law (Article 191 of the Criminal Code of the Russian Federation) does not include jewelry and household items and scrap of such items as the subject of this crime, which contradicts the Federal Law "On Precious Metals and Precious Stones". But even in the event that jewelry is not attributed to the subject of the crime in question, nevertheless, the precious stone extracted from such an item turns into the subject of the crime in question.
objective side crime is expressed in transactions with precious stones or pearls in violation of the rules established by the legislation of Russia, as well as in their illegal storage, shipping or shipping. The rules for making transactions with precious metals, natural precious stones and pearls and exceptions to them are established by federal laws and other regulatory legal acts, in particular the above Law, as well as Federal Law No. 173-FZ of December 10, 2003 "On currency regulation and currency control", resolutions of the Government of the Russian Federation, letters and instructions of the Central Bank of the Russian Federation, other departments authorized to carry out currency transactions or currency control. The Russian Federation and the constituent entities of the Russian Federation have a pre-emptive right to conclude agreements on the acquisition of ownership of mined and produced precious metals and precious stones with the subjects of their extraction and production in order to replenish the state funds of precious metals and precious stones of the Russian Federation and the constituent entities of the Russian Federation, the gold reserves of the Russian Federation. In all cases, the grounds for and procedure for making foreign exchange transactions are determined in a regulatory or permissive manner.
Under storage of the items in question is understood as their actual presence with the guilty person, regardless of whether he owns them or kept them at the request of another person.
Shipping is the movement of objects from one place to another, with the direct participation of the guilty person.
Forwarding- sending the relevant items by any means, but without the direct participation of the perpetrator.
Corpus delicti - formal: the act is completed from the moment of committing at least one of the actions specified in the disposition of the article. Wherein obligatory sign act is the size of the turnover, which must be large. Its definition is given in the footnote to Art. 169 of the Criminal Code of the Russian Federation.
Subjective side – straight intent. The perpetrator is aware that he is committing illegal manipulations with jewelry and desires to commit an act of this kind.
Subject- a physical sane person who has reached the age of 16 years.
AT Part 2 Art. 191 listed qualified species composition:
- – commission of an act by an organized group or
- - by a group of persons by prior agreement.
Article 191. Illegal circulation of amber, jade or other semi-precious stones, precious metals, precious stones or pearls
1. Making a transaction related to amber, jade or other semi-precious stones knowingly obtained without permission, as well as their illegal storage, transportation or transfer in any form, condition, with the exception of jewelry and household products and scrap of such products, by a person subjected to administrative punishment for a similar act provided for by Article 7.5 of the Code of the Russian Federation on Administrative Offences, -
Shall be punishable with a fine in the amount of up to one million rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to three years, or by compulsory labor for a term of up to four hundred and eighty hours, or by compulsory labor for a term of up to two years, with a fine in the amount of one hundred thousand to two hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of one year to eighteen months or without it, or by deprivation of liberty for a term of up to two years with a fine in the amount of one hundred thousand to two hundred thousand rubles or in the amount of the salary or other income convicted for a period of one year to eighteen months or without it.
2. Commitment of a transaction connected with amber, jade or other semi-precious stones knowingly obtained without permission, as well as their illegal storage, transportation or transfer in any form, condition, with the exception of jewelry and household products and scrap of such products, committed on a large scale, -
Shall be punishable by a fine in the amount of up to 2 million roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to 3 years, or by compulsory labor for a term of up to 4 years, or by deprivation of liberty for the same term, accompanied by a fine in the amount of up to 500 thousand roubles, or in the amount of salary or other income of the convicted person for a period of up to three years or without it.
3. Acts provided for by part two
Shall be punishable by a fine in the amount of up to five million rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to five years, or by compulsory labor for a term of up to five years, or by deprivation of liberty for a term of up to six years, with a fine in the amount of up to one million rubles, or the amount of wages or other income of the convicted person for a period of up to five years or without it.
4. Making a transaction related to precious metals, precious stones or pearls, in violation of the rules established by the legislation of the Russian Federation, as well as illegal storage, transportation or shipment of precious metals, precious stones or pearls in any form, condition, except for jewelry and household products and scrap of such products, committed on a large scale -
Shall be punishable by compulsory labor for a term of up to five years, or by deprivation of liberty for the same term, with or without a fine in the amount of up to 500,000 rubles or in the amount of the wage or salary, or any other income of the convicted person for a period of up to three years.
5. The deeds provided for by part four of this article, committed by an organized group or a group of persons by prior agreement, -
Shall be punishable by forced labor for a term of up to five years, or by deprivation of liberty for a term of up to seven years, with or without a fine in the amount of up to one million rubles, or in the amount of the wage or other income of the convicted person for a period of up to five years.
Note. The list of semi-precious stones for the purposes of this Article and Article 255 of this Code is established by the Government of the Russian Federation.
Article 191 of the Criminal Code of the Russian Federation establishes punishment for the criminal circulation of expensive metals and rare semiprecious raw materials. The extraction and sale of especially valuable natural resources is in the area of state interests. Income from such operations is a guarantee of economic stability and one of the main sources of budget formation. Of these, the State Fund and the gold and foreign exchange reserve (GFR) of Russia are replenished. Any unauthorized attempts to dispose of these resources are prosecuted by law.
The extraction of valuable minerals was not always the prerogative of power structures. Even at the beginning of the 20th century, anyone who wished could produce and sell yellow metal on their own. It was enough just to pay a tax on the land used and on profits.
This practice is now banned. However, in the future it is planned to allow private individuals to produce the precious metal and hand it over to the state. The draft law "on the free supply of gold" is already under development.
In the meantime, the extraction of valuable minerals, including gold mining, their processing, sorting, use, geological study and exploration of deposits are assigned to the jurisdiction of the state bodies of the Russian Federation.
Legal relations in this area are regulated by federal regulatory legal acts (NLA) and NLA of the subjects of the Federation (republics, territories, regions, districts, cities of federal significance).
They establish the procedure for production and certification, the conditions for ensuring safety, the rules for accounting and reporting, the conditions for transporting and importing these valuables.
Legal liability - administrative (KOAP 19.14) and criminal law (UK 191) - is provided for illegal actions related to the creation, modification, termination of rights to expensive natural elements.
The Code of Administrative Offenses (CAO) is followed if the amount of damage is insufficient to initiate criminal prosecution. As a punitive measure, a monetary penalty is used. The budget will have to be replenished with an amount from three thousand to fifty, according to the status of the subject. In all other situations, there will be more serious consequences. The person is charged with violating the criminal law and will be forced to suffer a tangible punishment, up to a long prison sentence.
Part 1 of Art. 191 establishes punishment for the illegal circulation of precious metals and especially valuable minerals of inorganic origin, committed on a large scale.
This act will be punished by serving forced labor or being sent to one of the institutions of the penitentiary system. The duration will be no more than 60 months.
As an additional measure, imposed simultaneously with isolation from society, financial punishment may be applied to a person. Its value will depend on official earnings or income for a certain period (no more than three years). Or the fine will have a fixed amount (up to half a million rubles).
Part two is devoted to the same offense, only committed by several persons united by a common intent, or by an organized criminal group. Such an act carries a great social danger and aggravates the punishment.
Violators will be subject to one of the following sanctions:
- Forced labor in places determined by the bodies of the penitentiary system. May last up to 5 years.
- Deprivation of liberty. The term of imprisonment can be up to 7 years.
Simultaneously with the placement of the attacker in a penitentiary institution, he may be required to compensate for the damage caused to the state. You will have to pay to the treasury up to 1 million RUB or the amount of salary or income received from other sources for a period of two to 60 months.
The confiscated valuables become the property of gold reserves or other specialized funds.
In the last decade, there has been a gradual decriminalization of the dispositional part of Article 191. If the old versions of the code provided for liability for the shadow circulation of jewelry in any amount, now parties whose value exceeded 1,000,000 RUB fall under criminal jurisdiction.
By organizing illegal circulation of precious metals, natural stones or pearls, a person contributes to their depreciation. In turn, this leads to a decrease in their quotes on the official exchange.
Especially rare and expensive resources become the subject of crime. Their exhaustive list is given in Federal Law No. 41. First of all, they include noble metals. In addition to gold and silver, six more such elements are known - these are platinum, palladium, iridium, rhodium, ruthenium and osmium.
They may be in the form:
- nuggets;
- refined (purified) metal;
- blanks subjected to primary metalworking (cast, stamped, forged), subsequently used to create finished products;
- chemical compounds in different proportions (calaverite, krennerite, sylvanite);
- stamped ingots corresponding to GOST;
- washed sediment;
- minerals in the form of ore, sand, materials of technogenic deposits;
- intermediate products of metallurgical and other production;
- production and technical products (contacts for boards, radio components, laboratory flasks, bars and wires of various cross-sectional profiles, and others);
- coins taken out of circulation.
Also, they should include returnable waste obtained during the technological process during factory production (chips, pieces, sawdust, chips, saw cuts), which can be refined.
As the second group of objects, the law specifies diamonds, emeralds, sapphires, alexandrites, rubies and natural pearls, measured in carats. That is, gemstone raw materials of group A of the first order. Additionally, the legislator included in this list of amber formations recognized as unique by a special commission.
In order for these elements to be considered as a criminal object, they must have the following form:
- Natural (before processing and polishing). Having a gemological conclusion, certificate, report or not yet evaluated.
- A faceted insert for making jewelry that has not passed mandatory certification.
- Billets or finished product for technical purposes.
They also include mineral formations extracted (recovered) from tools and various devices that have fallen into disrepair due to wear or are out of service for other reasons.
Cannot be attributed to the objects of crime:
- certified gemstones, natural origin;
- cultured, imitation and string pearls;
- synthetic minerals identical to natural ones;
- jewelry (ruby, emerald, diamond jewelry);
- household products used for various purposes. These are things for decorating the interior, things used for cult, religious and ritual purposes, cutlery, shaving and smoking accessories, perfume bottles, dental appliances, commemorative medals and badges of distinction;
- valuable copies of banknotes that can be used as a legal means of cash payment.
As well as used jewelry, technical, medical products from various alloys.
Transactions with the above elements are not criminal in and of themselves. Even if the subject is a finished product that does not have a quality mark affixed by the state inspection of assay supervision. Responsibility will come only for the storage of the material.
Optional features of the objective side are:
- Item cost. In order for an offense to fall under the jurisdiction of the criminal law, it cannot be less than a million rubles. This figure is indicated by the legislator in the general part of the Criminal Code.
- An association of several persons pursuing common criminal goals.
The value of the subject of the crime should be assessed according to the exchange prices for these objects that were in operation in the world at the time of the termination of the act. It does not matter whether it is stopped for subjective reasons (voluntarily) or due to external interference (stopped by police officers).
The subjective side is expressed in the direct intent of the guilty person. According to the Ruling of the Constitutional Court of the Russian Federation of December 18, 2007 No. 918-O-O, a person must be fully aware of the illegality of his actions and their logical consequences.
The subject can only be an individual who has reached the age of sixteen by the time the crime was committed. It may or may not have specific powers (for example, to hold a management position in a mining company or refinery). His citizenship is irrelevant. The offender may be a Russian citizen, a resident, have dual citizenship or not have it at all.
Actions, which the Criminal Code of the Russian Federation considers as a turnover, are divided into two groups. Firstly, these are actions to dispose of especially valuable natural elements, without having the appropriate rights to them.
It is considered a crime:
- keep. That is, to ensure the safety of objects for an indefinite period of time. For these purposes, a person can equip an easily accessible hiding place or place valuables in a hard-to-reach place (to a great height);
- transport. Personally move objects using any vehicle (airplane, car, electric train, regular bus). If, when moving, the accused has silver or emeralds in his breast pocket, backpack, briefcase or other hand luggage - this is not considered transportation, but is regarded as storage;
- forward. Transportation of valuables in space without the personal presence of the accused. As a method of shipment, courier delivery, postal (parcel, parcel post) or mail and luggage shipment (by rail), air shipment are considered. Sending by courier is considered forwarding only if he did not know about the object he was moving, and did not collude with the sender.
Illegal storage and transportation of precious metals or delivery of things to the carrier are considered completed from the moment the illegal actions begin. There are no consequences for this. Each of the acts mentioned above constitutes in itself a complete corpus delicti.
In order to form a corpus delicti, the subject who stored, forwarded or transported jewelry should not have ownership or other right to them. They can be illegally obtained, stolen or acquired in another illegal way.
Secondly, it is an activity that establishes, changes or terminates the rights to these values. This can happen by concluding agreements of exchange, sale, donation, loan, lease.
- In violation of existing principles. For example, without granting a priority right to make a purchase to specially authorized federal executive bodies or similar bodies of federal subjects.
- Between parties (individuals and legal entities) who do not have the authority to conclude such agreements due to their lack of a special status.
- In violation of the place where they should be performed.
All parties involved in the agreement process will be held accountable.
In addition, the illegality of the transaction may be due to the illegality of the extraction and production of valuable resources. For example, buying them from "black prospectors".
In addition to organizing illegal trafficking, a person may be charged with other offenses provided for by criminal law. The charge of carrying out entrepreneurial activity (mining) without appropriate authority (171) is charged if the resources are obtained in an artisanal way. If the seller deliberately tries to deceive the buyer and sell other elements (zirconium dioxide, lead silicate glass, copper, pyrite, rock crystal, brass) under the guise of precious, then he will be responsible for fraud (159). The buyer will be attracted according to 191 for attempted purchase.
Judicial practice under Article 191 of the Criminal Code of the Russian Federation
Compilation judicial practice with the comments of specialists is presented on the website of the electronic legal system "Consultant Plus". Also, examples of court decisions, sentences and appeals can be found in numerous forums dedicated to this issue.
V. A. Petrov, a citizen of the Russian Federation, committed an act qualified as an illegal, intentional circulation of precious metals in the form of gold. Acting deliberately, out of mercenary motives, for 7 months he repeatedly acquired from unidentified persons pieces of schlich gold of 50-100 grams. In the future, he planned to resell the entire batch as a whole. The total mass of gold illegally acquired by him amounted to 2047.31 grams, the cost was estimated at 4 million rubles. Storage was carried out on the personal living space of the accused at the address of Mr. N st. Nskaya d.1 apt. one.
During the pre-trial investigation it was established:
- the defendant had direct intent to commit a crime and was aware that the gold he bought was obtained by criminal means;
- the value of the valuables that were kept by Petrov was assessed as a large amount.
The defendant admitted his guilt during the investigation. The court had no doubts about the guilt of the defendant.
In imposing punishment, the court took into account the presence of extenuating circumstances. Namely, a full admission of guilt, active repentance, the presence of a dependent minor child, as well as the fact that the accused first came to the attention of law enforcement agencies. No aggravating circumstances that could have aggravated the guilt were found.
The sentence imposed was 1 (one) year 7 (seven) months of forced labor. The time that Petrov spent in custody before the trial (3 months) is included in the period of forced labor.
Material evidence (gold) is subject to transfer to the state fund after the entry into force of the verdict.
