1. Conducting a transaction related to knowingly unauthorized extraction of amber, jade or other semi-precious stones, as well as their illegal storage, transportation or shipment 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 in Article 7.5 of the Code of the Russian Federation on Administrative Offences, -
shall be punishable by a fine in the amount of up to one million rubles, or in the amount of the wages or 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 eighty hours, or by forced 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 wages or other income of the convicted person for a period of one year to eighteen months or without it, or by imprisonment 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 wages or other income convicted for a period of one year to eighteen months or without it.
2. Conducting a transaction related to knowingly unauthorized extraction of amber, jade or other semi-precious stones, as well as their illegal storage, transportation or shipment 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 two million rubles or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a term of up to four years, or by imprisonment for the same term with a fine in the amount of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years or without it.
3. Acts provided for in part two of this article, committed by an organized group or a group of persons by prior conspiracy, -
shall be punishable by a fine in the amount of up to five million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to six years with a fine 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. Conducting 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, with the exception of jewelry and household products and scrap of such products, committed on a large scale -
shall be punishable by forced labor for a term of up to five years or imprisonment for the same term with or without a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years.
5. Acts provided for in part four of this article, committed by an organized group or a group of persons by prior conspiracy, -
shall be punishable by forced labor for a term of up to five years, or imprisonment 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 wages 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 190. Non-return of cultural property to the territory of the Russian Federation
- Article 191.1. Acquisition, storage, transportation, processing for marketing purposes or sale of knowingly illegally harvested wood
Commentary to Art. 191 of the Criminal Code of the Russian Federation
The object of the crime is the established procedure for the circulation of precious metals, natural precious stones or pearls.
The Russian Federation has established special rules for the circulation (civil circulation) of precious metals and stones. All actions performed with these values are strictly monitored and taken into account. This procedure is regulated by special regulatory legal acts.
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See, for example: Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” // RG. 1998. April 7; 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” // RG. 1994. July 9; Decree of the Government of the Russian Federation of September 28, 2000 N 731 “On approval of the Rules for accounting and storage of precious metals, precious stones and products made from them, as well as maintaining relevant reporting” // RG. 2000. Oct 20; Decree of the Government of the Russian Federation of December 1, 1998 N 1419 “On approval of the Procedure for carrying out transactions with mineral raw materials containing precious metals before refining” // RG. 1998. 11 Dec.
The subject of the crime is precious metals, natural precious stones, pearls.
According to Art. 1 of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones”, precious metals mean gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium). Precious metals can be in any condition, 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.
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RG. 1998. April 7
Natural gemstones include diamonds, emeralds, rubies, sapphires and alexandrites. In accordance with the procedure established by the Government of the Russian Federation, unique amber formations are equated to precious stones.
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Decree of the Government of the Russian Federation of January 5, 1999 N 8 “On approval of the Procedure for classifying unique amber formations as precious stones” // RG. 1999. 22 Jan.
Pearls are a natural gemstone in any form and condition.
In accordance with the disposition of Art. 191 of the Criminal Code of the Russian Federation, the subject of this crime does not include jewelry and household products and scrap of such products.
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On the concept of jewelry, see Order of Roskomdragmet of October 30, 1996 N 146 “On the procedure for classifying products containing precious metals as jewelry” // SPS “Garant”.
The objective side of the crime is expressed in illegal actions related to precious metals, natural precious stones or pearls: 1) making a transaction; 2) storage; 3) transportation; 4) shipment.
Transactions (Article 153 of the Civil Code of the Russian Federation) include the purchase and sale of valuables, their exchange, donation, etc. Mining, sorting, processing, production and use of precious metals and precious stones are not transactions.
The storage of valuables refers to the actions of a person associated with their possession (for example, with oneself, at home, in a hiding place). Transportation is the movement of objects from one place to another by the culprit using any type of transport (for example, in a train, car, plane). Sending valuables is their movement to the addressee, without the direct participation of the sender (for example, in a parcel, letter, luggage).
The circulation of precious metals, natural precious stones or pearls is illegal if it is carried out in violation of the rules established by the legislation of the Russian Federation and regulating the procedure for the circulation of such items. For example, according to Art. 3 of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” in the Russian Federation there are exchanges of precious metals and precious stones intended for legal entities and individuals to carry out transactions related to the circulation of: standard and measured refined bullion precious metals; untreated precious stones that have been sorted; processed gemstones that have passed certification; nuggets of precious metals, etc. Consequently, the implementation of such transactions, in addition to exchange trading, is illegal (except for special cases established by law).
The elements of this crime are also formed by actions with valuables acquired in violation of the Criminal Code of the Russian Federation (for example, a person possesses precious metals and stones as a result of their illegal mining, theft, or taking a bribe).
An act related to transactions, transportation and transfer of valuables is completed at the moment of commission of any of these actions. Possession of these items is a continuing crime that is completed from the moment storage begins, regardless of its duration. The corpus delicti is formal.
If a person sells (exchanges, etc.) metals and stones under the guise of precious stones, which are not precious, then he is subject to liability for fraud (Article 159 of the Criminal Code of the Russian Federation).
An act related to the theft of valuables and associated with their further storage, transportation and forwarding must be qualified in conjunction with Art. 191 of the Criminal Code of the Russian Federation.
The implementation of illegal business activities related to the mining and production of precious metals and natural precious stones, and the subsequent commission of their illegal trafficking, if there are grounds, are classified as a set of crimes (Articles 171 and 191 of the Criminal Code of the Russian Federation).
The subjective side is characterized by guilt in the form of direct intent. The person is aware that he is trafficking in precious metals, natural gemstones or pearls and desires to do so.
The general subject of the crime is a sane individual who has reached the age of sixteen.
The qualifying feature is the commission of a crime on a large scale, by a group of persons by prior conspiracy (see Part 2 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto), or by an organized group (see Part 3 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto).
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, large size means the cost of precious metals, natural precious stones or pearls exceeding two hundred and fifty thousand rubles.
When establishing the value of precious metals, precious stones and pearls, one should be guided by the prices for these metals and stones that existed at the time of illegal transactions with them, transportation or shipment, and in case of illegal storage - at the state when the act was stopped by the person himself or stopped by law enforcement agencies . In this case, purchase prices for non-ferrous metals are used, quoted daily by the Central Bank of the Russian Federation, and the cost of precious stones is determined on the basis of the conclusion of a gemological examination.
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Volzhenkin B.V. Commentary on the Criminal Code of the Russian Federation / Ed. IN AND. Radchenko, A.S. Mikhlina. St. Petersburg, 2007.
Exceptions
Some states of precious metals will not be considered as the subject of Article 191 of the Criminal Code of the Russian Federation. These include:
- Jewelry. They are understood as objects and various kinds of decorations that are made using artistic processing in its various manifestations. Precious metals are processed in combination with semi-precious, precious or counterfeit stones and other natural materials. Or they can be made entirely of precious metal;
- Household products made from precious metals. This means that such an item does not belong to the type of personal jewelry; items used in everyday life are used. This could be dishes, weapons, religious objects, etc.;
- Objects of art, antiquities or antiques, in the manufacture of which precious metals or stones were used;
- Scrap jewelry and other household items. These may be unusable, broken jewelry and items that can be recycled into other products;
- Gold leaf. These are thin films of gold that are used for decorative purposes;
- Discs for dental prostheses;
- State awards made using precious stones and metals;
- Collectible coins.
Important! In all of these cases, it is not taken into account how objects and decorations are made; it may also be a handicraft method. In addition, it does not matter whether the stamp is affixed or not. Clauses 3, 5, 7, 8 are an exception only for one-time transactions.
Judicial practice under Article 191 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated April 20, 2017 N 836-O
RIGHTS BY THE PROVISIONS OF ARTICLE 191 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,
Determination of the Constitutional Court of the Russian Federation dated January 30, 2020 N 250-O-R
1. By ruling No. 831-O dated March 27, 2021, the Constitutional Court of the Russian Federation refused to accept for consideration the complaint of citizen A.G. Kazistov for violation of his constitutional rights by Article 191 of the Criminal Code of the RSFSR and Article 317 of the Criminal Code of the Russian Federation, since it did not meet the requirements of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, according to which a complaint to the Constitutional Court of the Russian Federation is considered admissible.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 31, 2017 N 74-APU17-6
- according to Part 2 of Art. 191 of the Criminal Code of the Russian Federation to imprisonment for a term of 4 years with a fine of 200,000 rubles; - according to Art. 316 of the Criminal Code of the Russian Federation to a fine of 200,000 rubles. Based on Part 3 of Art. of the Criminal Code of the Russian Federation by partial addition of punishments for the totality of crimes, finally Kazakov V.S. sentenced to imprisonment for a term of 7 years with a fine of 300,000 rubles, with restriction of freedom for 2 years, and a fine of 200,000 rubles.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 27, 2017 N 72-APU17-23sp
- 12/03/2014 by the Trans-Baikal Regional Court, taking into account the changes made by the appeal ruling of the Supreme Court of the Russian Federation dated 07/09/2015 under Part 4 of Art. 159, part 2 art. 330, part 3 art. Part 4 Art. 159, part 2 art. 191, part 4 art. 159, part 2 art. 291, paragraphs “g”, “k”, part 2 of Art. 105, part 3 art. pp. “a”, “g”, “k” part 2 art. 105, part 3 art. of the Criminal Code of the Russian Federation to 24 years in prison with a fine of 500,000 rubles, with restriction of freedom for 2 years,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 25, 2018 N 83-APU17-14
by a resolution of the Deputy Prosecutor General of the Russian Federation L.G. Korzhinek. dated October 10, 2021, the request of the Prosecutor General's Office of Ukraine for the extradition of M.I. Andryushchenko was satisfied. to bring to criminal liability under Part 5 of Article 191 of the Criminal Code of Ukraine. This decision was appealed by Andryushchenko M.I. to the Bryansk Regional Court, which on November 20, 2021 rejected the complaint, recognizing the decision of the Deputy Prosecutor General of the Russian Federation as legal and justified.
Specific qualifications
The specificity of the qualification of this type of act is whether this or that operation is permissible.
It is determined by the state in which precious metals and stones are located. As an example, we can consider the situation with a cut diamond that has a commercial form. It can be transferred, transported and perform other various operations only if there is a document that confirms the purchase of the stone. With the help of a document, you can prove that the stone was not misappropriated.
If we talk about the native brother of this stone, which does not have polished edges, then the performance of any actions with it by a subject who does not have a license is considered a crime.
A similar situation occurs when performing operations with stones that are not processed. Even industries that have official permission to operate with these stones and metals cannot implement it if the metals are required to replenish the budget’s gold reserves.
If even a small amount of gold dust or nuggets is in the possession of a private person, then this is fraught with criminal liability for him. This is due to the fact that an individual cannot act as a subject who is allowed to circulate stones and metals classified as precious.
Qualifying features
Large size provided for in Part 1 of Article 191 of the Criminal Code of the Russian Federation is considered as qualifying signs of this act. Its amount is determined in the note to Article 170.2 of the Criminal Code and is equal to 2 million 250 thousand rubles.
Part two includes such qualifying criteria as the commission of an act by a group of persons by prior conspiracy or by an organized group.
Organized group:
- is sustainable;
- its members have united to commit one or more criminal acts;
- Each participant has their own role and responsibilities.
A group of persons by prior conspiracy:
- several persons (at least two) agreed to commit a crime;
- in this case, an agreement could be reached before the crime began.
Features of the investigation
The priority direction of the process of investigating a criminal act regarding precious metals and stones is their presence, which provides the basis for qualifying the act under the article in question.
If a situation arises where there are no materials that are the subject of Article 191 of the Criminal Code of the Russian Federation, further investigation becomes impossible.
After the jewelry is seized, an analysis is carried out aimed at establishing the possibility of classifying the materials as prohibited for circulation. If, after assessing the materials, it is determined that an appropriate permit is required to conduct transactions with metals and stones, then the owner is required to provide documentation confirming the legality of the transaction.
The last stage is the analysis of the transaction regarding its legality. If it is completed successfully, then criminal liability does not apply. If the legal requirements for the handling of stones and metals are not met, liability arises.
