1. Illegal production of explosives, as well as illegal production, alteration or repair of explosive devices -
shall be punishable by imprisonment for a term of eight to ten years with a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years.
2. The same acts committed by a group of persons by prior conspiracy, -
shall be punishable by imprisonment for a term of ten to fifteen years with a fine in the amount of three hundred thousand to eight hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years.
3. Acts provided for in the first part of this article, committed by an organized group, -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of five hundred thousand to one million rubles or in the amount of the wages or other income of the convicted person for a period of two to three years.
Note. A person who voluntarily surrenders the items specified in this article is exempt from criminal liability under this article.
Commentary to Art. 223.1 of the Criminal Code of the Russian Federation
1. On the concept of explosives or explosive devices, see the commentary to Art. 222.1 of the Criminal Code of the Russian Federation.
2. On the concept of illegal manufacturing, see the commentary to Art. 223 of the Criminal Code of the Russian Federation.
3. The qualifying features of Parts 2 and 3 (a group of persons by prior conspiracy or an organized group) are disclosed in the commentary to Art. 35.
4. The subjective side of the crime is an intentional form of guilt.
5. The subject of the crime is a sane individual who has reached the age of 14.
6. For the application of a note to the commented article, see the commentary to Art. 222 of the Criminal Code of the Russian Federation.
Article 223.1 of the Code of Criminal Procedure of the Russian Federation. Notification of suspicion of committing a crime (current version)
1. Suspicion of committing a crime is an assumption that a certain person has committed a crime, entailing criminal prosecution. Suspicion precedes accusation, and unlike it, it is not based on complete and reliable evidence. For the accusation, see comment. to paragraph 22 of Art. 5. Only such suspicion has legal significance that objectively limits or threatens restrictions on the rights of the suspected person (see Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P), since it is related to his criminal prosecution - activities to expose the alleged criminal (Article 20). The presence of suspicion gives rise to the status of a suspect (Clause 4, Part 1, Article 46), who is guaranteed the right to defense (Article 16).
2. The notification of suspicion provided for in the commented article is an analogue of the procedure for bringing a person as an accused (Chapter 23 of the Code of Criminal Procedure). The notice applies only when the inquiry is carried out in a case initiated upon the commission of a crime. If a criminal case has been initiated against a specific person, then suspicion is formulated in the decision to initiate the case (see commentary to Part 2 of Article 140). In addition, suspicion may be recorded in the arrest report or a decision on the selection of a preventive measure before charges are filed (see commentary to Article 46). However, according to the literal meaning of the commented article, this does not relieve the investigator from the obligation to notify.
3. The basis for drawing up a written notification of suspicion in Part 1 of the commented article recognizes “sufficient data giving grounds to suspect a person of committing a crime.” Comparison of this norm with the content of Art. 171 of the Code of Criminal Procedure allows us to draw a number of conclusions:
a) the basis for suspicion may be not only evidence, but also other data;
b) the data must be sufficient to make a presumptive conclusion about the guilt of the suspect. This data may be similar to the grounds for detaining a suspect (Article 91) or initiating a criminal case against a specific person, or serve as the basis for carrying out investigative actions to expose the suspect (presenting him for identification, searching his home, etc.). The principle of ensuring the right to defense requires the immediate preparation of a notice of suspicion.
4. A notice of suspicion is issued subject to the same conditions as the initial accusation. See comment about them. to Art. 171.
5. The procedure for notifying of suspicion consists of the following actions of the investigator:
1) drawing up a written notification (about it, see the commentary to Part 2 of Article 223.1);
2) calling a suspected person; his identity card; giving him a copy of the notice; clarification of the rights of the suspect; drawing up a protocol about this. According to the literal meaning of the commented article, a copy of the notice must be delivered to the suspect personally. The law does not specify a time limit within which a copy of the written notice must be served. By analogy with Part 1 of Art. 172 we can conclude that this period should not be more than 3 days from the date of drawing up the notification, since an inquiry is a shorter form of investigation than a preliminary investigation. At the same time, the law does not contain a requirement for personal delivery of a copy of the decision to initiate a case against a specific person (another form of suspicion);
3) the interrogation of the suspect on the merits of the suspicion must follow no later than 3 days from the date of delivery of a copy of the notification. In this case, it is necessary to ensure the right of the suspect to use the services of a defense lawyer.
Noteworthy is the difference in the start time of the interrogation of the suspect and the accused (Article 174). The latter must be questioned immediately after the accusation is filed, and the suspect must be questioned no later than 3 days after notification of suspicion. The purpose of setting a time for the commencement of questioning is to give the suspect sufficient time to prepare his defense and to give him the opportunity to testify as quickly after notification of the suspicion as he wishes. When interrogating a suspect, you can use a similar procedure for interrogating the accused (Article 174).
6. Part 2 of the commented article regulates the content of the notification of suspicion. Taking into account the probable nature of the grounds for drawing up the notification and its focus on ensuring the right to defense, it should be recognized that the content of paragraphs 3 and 4 of part 2 of the commented article may not be fully indicated in the notification. Otherwise, the investigator will be forced, even before drawing up the notification, to expose the person in committing a crime, finding out all the circumstances of his commission of this crime. For example, the investigator does not know the exact date and place of birth of the suspect, but there is sufficient information about his participation in the commission of the crime. The procedural law will be violated if the inquiry officer, instead of notifying of suspicion, interrogates this person as a witness about his date and place of birth.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
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Article 223. Illegal manufacture of weapons
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- Criminal Code of the Russian Federation
- Article 223. Illegal manufacture of weapons
1. Illegal manufacture, alteration or repair of firearms, their main parts (except for firearms of limited destruction), as well as illegal manufacture of ammunition -
shall be punishable by imprisonment for a term of three to five years with a fine in the amount of one hundred thousand to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of six months to one year.
2. The same acts committed by a group of persons by prior conspiracy, -
shall be punishable by imprisonment for a term of three to seven years with a fine in the amount of two hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years.
3. Acts provided for in parts one or two of this article, committed by an organized group, -
shall be punishable by imprisonment for a term of five to eight years with a fine in the amount of three hundred thousand to four hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of two to three years.
4. Illegal manufacture, alteration or repair of firearms of limited destruction or illegal manufacture of gas weapons, bladed weapons, throwing weapons, as well as illegal manufacture, alteration or equipment of cartridges for firearms of limited destruction or gas weapons -
shall be punishable by compulsory labor for a term of up to four hundred eighty hours, or correctional labor for a term of one to two years, or restriction of liberty for a term of up to two years, or imprisonment for a term of up to two years with a fine in the amount of fifty thousand to eighty thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to six months or without it.
(Part four as amended by Federal Law No. 398-FZ of December 28, 2010 - Collection of Legislation of the Russian Federation, 2011, No. 1, Art. 10)
Note. A person who voluntarily surrenders the items specified in this article is exempt from criminal liability under this article.
Commentary on Article 223
An object
crimes - public safety in the sphere of trafficking in weapons, ammunition, explosives and explosive devices.
The subject of the crime under Part 1 of Art. 223 of the Criminal Code of the Russian Federation, are firearms, their components, ammunition, explosives and explosive devices.
The subject of the crime under Part 4 of Art. 223 of the Criminal Code of the Russian Federation - gas, cold, including throwing weapons. The concept of these items is given in relation to Art. 222 of the Criminal Code of the Russian Federation.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 12, 2002 N 5 “On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices” explains that components for firearms are recognized as the main parts of firearms , as well as other parts structurally designed to ensure the normal functioning of a specific type of firearm (frame, sights, etc.).
Objective side
crime under Part 1 of Art. 223 of the Criminal Code of the Russian Federation, consists of committing at least one of the following actions: 1) illegal manufacturing of firearms and components for them; 2) illegal repair of these items; 3) illegal manufacture of ammunition, explosives and explosive devices.
The objective side of the crime provided for in Part 4 of Art. 223 of the Criminal Code of the Russian Federation, consists of the illegal manufacture of gas, cold steel, including throwing weapons.
The illegal manufacture of firearms, their components, ammunition, explosives or explosive devices, entailing criminal liability, should be understood as their creation without a license obtained in the prescribed manner or the restoration of lost destructive properties, as well as the alteration of any items (for example, rocket launchers , gas, pneumatic, starting and construction pistols, household items or sports equipment), as a result of which they acquire the properties of firearms, gas or bladed weapons, ammunition, explosives or explosive devices. When qualifying subsequent illegal actions with manufactured weapons (ammunition), it is necessary to proceed from those tactical and technical characteristics that the weapon converted by the perpetrator actually began to possess, and not those items that were altered.
In this regard, it should be noted that in practice, a unified approach to assessing the conversion of a sawn-off hunting rifle has not been developed. From our point of view, converting a hunting rifle into a sawn-off gun constitutes a crime under Art. 223 of the Criminal Code of the Russian Federation, since the manufacture of a sawn-off shotgun by making design changes to a hunting rifle changes the characteristics of a civilian smooth-bore weapon <1>.
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<1> The Ruling of the Supreme Court of the Russian Federation dated April 10, 2003 N 53-o02-72 sets out a different position, according to which the manufacture of firearms should be understood as their creation in finished form, as well as the alteration of any items (rocket guns, gas, starting or construction pistols, household items or sports equipment), as a result of which these items acquire the properties of a firearm. The production of a sawn-off shotgun from a firearm does not constitute a crime under Part 1 of Art. 223 of the Criminal Code of the Russian Federation, since as a result of these actions the weapon does not acquire the properties of a firearm.
Repairing firearms and their components means bringing a faulty weapon or its individual parts into a condition suitable for use for its intended purpose.
When deciding whether the culprit’s actions include the illegal manufacture of weapons, attention should be paid to the fact that the decriminalization of actions related to the illicit trafficking of civilian smooth-bore weapons and ammunition is not applicable to Art. 223 of the Criminal Code of the Russian Federation, since in accordance with Part 2 of Art. 3 of the Criminal Code of the Russian Federation, the application of criminal law by analogy is not allowed. Therefore, for example, the manufacture of ammunition for a hunting shotgun constitutes a crime under Part 1 of Art. 223 of the Criminal Code of the Russian Federation.
Composition of crimes provided for in Part 1 and Part 4 of Art. 223 of the Criminal Code of the Russian Federation is formal. Manufacturing and repair are completed at the moment when ready-to-use weapons, ammunition, explosives, explosive devices, and components suitable for assembling weapons are received.
Subjective side
crimes are characterized by direct intent. The perpetrator is aware that he is committing illegal acts with a weapon and wants to do them.
Subject
general crime - a sane person who has reached the age of sixteen.
A qualified crime (Part 2 of Article 223 of the Criminal Code of the Russian Federation) is formed by the actions provided for in Part 1 of the article in question, committed by a group of persons by prior conspiracy.
A particularly qualified crime is the commission by an organized group of actions provided for in Part 1 of Art. 223 of the Criminal Code of the Russian Federation. The concept of a group of persons by prior conspiracy and an organized group is given in Art. 35 of the Criminal Code of the Russian Federation (see also commentary to Article 205 of the Criminal Code of the Russian Federation).
Article 223 of the Criminal Code of the Russian Federation contains a note according to which a person who voluntarily surrenders a firearm, its components, ammunition, explosives and explosive devices is exempt from criminal liability unless his actions contain another crime. The conditions for the application of this norm are similar to the rules for the application of the note to Art. 222 of the Criminal Code of the Russian Federation.
