Article 191 of the Criminal Code of the Russian Federation constitutes a crime. Criminal Code on illegal storage and transportation of precious metals, natural precious stones or pearls

Makeup

(as amended by Federal Law dated December 7, 2011 N 420-FZ)

Part 1. Conducting 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, with the exception of jewelry and household products and scrap of such products, committed on a large scale -

are punished 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 wages or other income of the convicted person for a period of up to three years.

Part 2. The same acts committed by an organized group or a group of persons by prior conspiracy -

are punished 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 wages or other income of the convicted person for a period of up to five years.

Commentary to Art. 191 of the Criminal Code of the Russian Federation

1. The concept of the objects of this crime is given in Art. 1 of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones”.

2. On the concept of jewelry, see the Regulations on the procedure for classifying products containing precious metals as jewelry, approved by Order of Roskomdragmet dated October 30, 1996 N 146, letter of the Ministry of Finance of Russia dated August 6, 2003 N 23-02-04/752 “On classifying products to jewelry." From these documents, in particular, it follows that faceted precious stones are the subject of the crime provided for in the commented article.

3. On the concept of a transaction and an invalid transaction, see the commentary. to Art. 174. When distinguishing a transaction with precious metals and precious stones from other transactions with these items, the provisions of Art. 1 of the Federal Law "On Precious Metals and Precious Stones", which names four types of operations with precious metals and precious stones. The first type includes actions expressed in the transfer of ownership and other property rights to precious metals and precious stones (circulation of precious metals and precious stones), including their use as collateral. Thus, this type of operation is a transaction. Other types of transactions are not transactions.

4. For the concept of storage and transportation, see commentary. to Art. 171.1. Transfer should be understood as the actions of a person aimed at moving precious metals and precious stones, for example, in postal items, parcels, luggage using postal communications, air or other modes of transport, as well as by courier in the absence of the latter’s awareness of the actual object being moved or his collusion with the sender, when these movement actions are carried out without the direct participation of the sender. The crime in this form is completed from the moment the letter, parcel, luggage, etc. is sent. regardless of their receipt by the addressee.

5. When determining the illegality (violation of the rules established by the legislation of the Russian Federation) of a transaction, as well as the illegality of storage, transportation or forwarding, one should proceed from the fact that any actions with precious metals and natural precious stones must comply with the procedure established for them by the legislator.

For example, according to paragraphs 3 and 4 of Art. 2 of the Federal Law “On Precious Metals and Precious Stones”, subsoil areas containing precious metals and precious stones can be allocated for use only on the basis of licenses issued in accordance with the legislation of the Russian Federation on subsoil resources for the extraction of precious metals and precious stones, and by the owners of those extracted from subsoil of precious metals and precious stones become subjects of extraction of these values (with a number of exceptions) only if the values were obtained by them legally during mining, and the owner of illegally mined precious metals and precious stones is the Russian Federation.

Based on this requirement, a person who illegally extracted precious metals or precious stones and therefore did not become their owner cannot, therefore, take actions aimed at establishing, changing or terminating the rights associated with these values, and, therefore, having sold them, by giving, giving as payment for a debt, etc., this person will make a transaction with the specified values that does not comply with the rules established by law.

6. Transactions of purchase and sale, gifts, etc. made between individuals who are not individual entrepreneurs, if the subject of such transaction is gold, silver bullion or products containing gold and silver and not related to jewelry and other household products , form part of this crime, since these persons are not named in the Regulations on transactions with precious metals on the territory of the Russian Federation among the entities that are allowed to carry out such transactions.

7. According to note. to Art. 169 of the Criminal Code, large is an amount exceeding 1 million 500 thousand rubles. The size is determined based on the market value of precious metals and stones that have become the subject of the crime.

8. Subjective side- direct intent.

9. Subject of the crime- general.

10. On the concept of a group of persons by prior conspiracy and an organized group, see the commentary. to Art. 35.

11. Illegal mining of precious stones and precious metals is neither theft nor an illegal transaction with these values. However, after these valuables are illegally mined and as a result become the property of the Russian Federation (Clause 4, Article 2 of the Federal Law “On Precious Metals and Precious Stones”), they may become the subject of theft.

Article 191. Illegal trafficking in amber, jade or other semi-precious stones, precious metals, precious stones or pearls

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.

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.

Illicit trafficking in precious metals, natural gemstones or pearls

Commentary on Article 191 of the Criminal Code of the Russian Federation:

1. The disposition of the article is of a blanket nature and requires the study of special regulations. The procedure for transactions involving precious metals, natural precious stones or pearls is established by the Government of the Russian Federation and, accordingly, is regulated by a number of laws and by-laws. The fundamental ones are: Federal Law of December 10, 2003 N 173-FZ “On Currency Regulation and Currency Control” (as amended on December 6, 2011); Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” (as amended on July 19, 2011); Regulations on transactions with precious metals on the territory of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 30, 1994 N 756 (as amended on August 24, 2004).

2. The direct object is the circulation of precious metals, natural precious stones or pearls established by the legislation of the Russian Federation. The subject of the crime as a collective concept includes: precious metals - gold, silver, platinum and platinum group metals (palladium, iridium, radium, ruthenium, osmium) in any form and condition; natural precious stones - diamonds, rubies, emeralds, sapphires and alexandrites in raw and processed form; pearl.
Jewelry and other household products made from these stones and scrap of such products are not included in the crime.

3. The objective side is characterized by an act committed in various forms and on a large scale. Firstly, this is a transaction involving precious metals, natural precious stones or pearls, in violation of the rules established by the legislation of the Russian Federation. Secondly, this is the illegal storage, transportation or shipment of precious metals, natural precious stones or pearls.
Storage - any illegal actions related to the presence of precious metals or stones in the possession of the perpetrator.
Transportation involves moving precious metals or precious stones, regardless of the method of transportation.
Transfer is recognized as the movement of precious stones and precious metals in the form of postal and luggage items, when their transportation is carried out without the participation of the sender.
For large sizes, see the note to Art. 169 of the Criminal Code.

4. The subjective side is characterized by guilt in the form of direct intent.

5. The subject of the crime is general: a sane person who has reached the age of 16 years, carrying out illegal actions with the specified objects.

6. Part 2 provides for liability for the same acts, but committed by an organized group or a group of persons by prior conspiracy.

State Duma of the Russian Federation, 1996, 2008, 2010, 2012,2019

Article 191. Illegal trafficking in amber, jade or other semi-precious stones, precious metals, precious stones or pearls

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, or subject to administrative punishment for a similar act provided for in Article 7.5 of the Code of the Russian Federation on Administrative Offences, -

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 -

5. Acts provided for in part four of this article, committed by an organized group or a group of persons by prior conspiracy, -

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 7.5 of the Code of Administrative Offenses (as amended on December 20, 2017) Unauthorized extraction of amber, jade or other semi-precious stones

Unauthorized extraction of amber, jade or other semi-precious stones, or transportation or storage for the purpose of sale of illegally mined amber, jade or other semi-precious stones in natural or processed form, or sale of illegally mined amber, jade or other semi-precious stones in natural or processed form, if such actions do not constitute a criminal offense, -

shall entail the imposition of an administrative fine on citizens in the amount of two hundred thousand to five hundred thousand rubles with or without confiscation of the instrument for committing the administrative offense; on officials -

from five hundred thousand to eight hundred thousand rubles with or without confiscation of the instrument of committing an administrative offense; for legal entities -

from ten million to sixty million rubles with or without confiscation of the instrument of committing an administrative offense.

Article 19.14. Code of Administrative Offenses (as amended on December 7, 2011) Violation of the rules for the extraction, production, use, circulation, receipt, accounting and storage of precious metals, pearls, precious stones or products containing them

Violation of the established rules for the extraction, production, use, circulation (trade, transportation, forwarding, collateral transactions, transactions made by banks with individuals and legal entities), receipt, accounting and storage of precious metals, pearls, precious stones or products containing them, and equal to the rules for the collection and delivery of scrap and waste of such metals, stones or products to the state fund -

entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; on officials of organizations carrying out transactions with precious metals, precious stones in all types or products containing them -

from ten thousand to fifteen thousand rubles; for legal entities -

from thirty thousand to fifty thousand rubles.

Large size (as amended on December 27, 2018)

Large size, large damage, income or debt on a large scale are recognized as cost, damage, income or debt in an amount exceeding two million two hundred and fifty thousand rubles, and especially large - nine million rubles.

List of semi-precious stones (from 08/31/18)

Beryl, including aquamarine, heliodor.

COMMENT on gold

According to Part 1 of Art. 191 criminal liability is established for making a transaction related to precious metals in violation of the legislation of the Russian Federation, as well as illegal storage, transportation or transfer of precious metals in any form and condition, with the exception of jewelry and household products and scrap of such products.

The objective side of this crime consists of committing the following alternative acts:

illegal transactions with precious metals;

illegal storage, transportation or shipment of precious metals.

These acts are illegal when they are committed in violation of regulations governing the circulation of precious metals. There are many such acts for legal entities. Violation of any of them threatens with troubles, including confiscation of gold.

Almost everything is prohibited for private individuals, which is a reason for the confiscation of gold in any case when it is found.

It is difficult to prove the fact of a transaction with gold, so most often gold miners are held accountable for its illegal storage.

The subject of a crime can be any sane person who has reached the age of 16, both private and official (for example, heads of mining organizations, refineries, purchasing enterprises).

The subjective side is characterized by guilt only in the form of direct intent. The culprit realizes that he is carrying out transactions with precious metals, is aware of the social danger of acts with them, and wants to commit any of the listed acts.

As for the subject of the crime - the precious metals themselves - then, according to paragraph 2 of Art. 30 of the Law on Precious Metals, they are subject to confiscation and subsequent mandatory delivery to the State Fund of Russia.

EXAMPLES OF OFFENSES

04/20/09. VOSTOK-MEDIA - A policeman from Vladivostok was detained at the Chita-II station, illegally transporting 100 grams of loose native gold worth 95 thousand rubles.

As Chita.Ru news agency was informed by the press service of the Trans-Baikal Department of Internal Affairs for Transport, a criminal case was initiated under Art. 191 of the Criminal Code of the Russian Federation “Illegal storage and transportation of precious metals.”

“The man transporting the gold turned out to be a police officer from Vladivostok, who was on his way home from vacation from the Karymsky district. Now the carrier of “treasures” can expect a fine in the amount of 100 to 500 thousand rubles,” the press service reported.

On April 17, 2009, police officers from the Department of Internal Affairs in the Susumansky district of Kolyma detained a 70-year-old citizen during operational search activities on the Zabyty stream, 130 km from the district center. As a REGNUM correspondent was informed on April 20 by the press service of the Internal Affairs Directorate for the Magadan Region, 10 grams of industrial gold, mined illegally, were found and confiscated from him. http://www.regnum.ru/news

08/19/2008 - More than 1.2 kg of gold-bearing sand, from which, according to preliminary estimates, more than 200 grams of pure gold can be obtained, was seized by employees of the East Siberian Department of Internal Affairs on transport. As a REGNUM correspondent was informed on August 19 by the press service of the East Siberian Department of Internal Affairs of the Russian Federation, when inspecting mail from the city of Bodaibo, Irkutsk Region, at the city airport, police officers became suspicious of a parcel sent by a prospector from one of the local gold mining cooperatives. It contained a box of chocolates and two cans of coffee. When checking with special equipment, foreign attachments were identified in the coffee cans - bags of gold-bearing sand. Currently, a criminal case has been opened under Article 191 of the Criminal Code of the Russian Federation “Illegal trafficking in precious metals, natural precious stones or pearls”, an investigation is underway.

09.17.08 - The Investigation Department of the Internal Affairs Directorate for the Magadan Region, based on materials from the Department for Economic Crimes, initiated a criminal case under Art. 191 part 2 of the Criminal Code of the Russian Federation in relation to B. Mutsolgov, born in 1966, director of Kvant LLC, who on August 25, under the guise of products from a mine located in the Olsky district, tried to hand over for processing to OJSC Kolyma Refinery illegally purchased from private persons concentrate gold. The press service of the Ministry of Internal Affairs of the Russian Federation reported this to REGNUM news agency. The total weight of the precious metal was 7 kg 575 g, the cost was 4 million 242 thousand rubles.

2008 - During Operation Nugget 2008, two miners were detained within 24 hours, from whom 56 grams of industrial gold were confiscated. As the Department of Internal Affairs reported in the information department of the Internal Affairs Directorate for the Magadan Region, one was detained in the Tenkinsky district, the other in the Omsukchansky district. On the night of June 6, at the Bolshoy Chalbykan site, 70 km from the village of Ust-Omchug, police officers detained a 52-year-old man, from whom 50 grams of industrial gold, mined illegally, was discovered and confiscated. On the afternoon of June 6, police officers from the Department of Internal Affairs in the Omsukchan district, during operational search activities in the district center - in the village of Omsukchan - near house 11 on Lenin Street, detained a local resident born in 1973, who was trying to sell six grams of industrial gold in the village (RIA Sever, 2008 , June 5).

On November 25, 2004, during operational search activities, employees of the Department of Economic Crimes of the Susumansky District Department of Internal Affairs on the Cherdak stream detained an underground prospector illegally mining gold. As the press service of the Russian Ministry of Internal Affairs for the Far East told the news agency "Data.RU", the "miner" turned out to be a 28-year-old woman. An unemployed Evenk woman, a resident of the city of Susuman, had already managed to extract 5 grams of gold by the time the operatives arrived. At first glance, the “catch” is not large, but, according to the information available to the police, this is not her first trip for the precious metal. The gold was confiscated and the miner was detained. The issue of initiating a criminal case against her is being decided.

07/16/04. Two miners involved in illegal gold mining were detained by police officers. According to MVDinform.ru, according to the information department of the Main Directorate of the Ministry of Internal Affairs of Russia for the Far Eastern Federal District, operatives detained gold miners at a mothballed dredge 50 km from the city of Aldan. The criminals, one of whom has already been prosecuted, had 39.5 kg of gold concentrate confiscated, which was sent for examination. The miners are in a temporary detention center. A criminal case has been initiated against them under the article “Illegal trafficking in precious metals.”

05/12/04. Officers of the Ministry of Internal Affairs of the Republic of Sakha (Yakutia) at the field of the Tigirgachi stream, the right tributary of the Nera River, detained two unemployed citizens - men born in 1965 and 1977, residents of the village of Ust-Nera (the eldest of them is a native of Moscow, the second arrived in Yakutia from sunny Kazakhstan), who, using a traditional mining set: a shovel and a screen, were engaged in illegal gold mining at a waste site. At the time of detention by police officers, 22.29 grams were discovered and confiscated from the “black miners.” industrial gold. Considering that the mini-artel only managed to work for two days, the “catch” was quite good. The men prepared thoroughly for work: they dug themselves a dugout, settled in with all possible comfort and, apparently, were going to settle in it for a long time. The criminal miners carefully stored the mined gold on the ceiling of their temporary housing. Based on the fact of illegal gold mining by these citizens, a criminal case was initiated under Part 2 of Article 191 of the Criminal Code of the Russian Federation “Illegal trafficking in precious metals, natural precious stones or pearls (on a large scale).” They face imprisonment for a term of 5 to 10 years with confiscation of property.

One of the Yakut miners' artels also burned down due to illegal trafficking of precious metals. It turned out that even during the washing season of 2001, Selena LLC, which was mining industrial gold in the Oymyakonsky district, without being the owner of the gold it mined, handed over 13 kilograms of industrial gold to the refinery as its own. Based on this fact, a criminal case was initiated under Part 2 of Article 191 of the Criminal Code of the Russian Federation.

In June 2000, a criminal case was initiated against the chairman of one of the gold-mining artisanal cooperatives in Kamchatka for the illegal transportation of precious metals on a large scale under Art. 191 part 2 paragraph "b" of the Criminal Code of the Russian Federation. (As amended in 2000, illegal possession under paragraph “b” “in especially large quantities” was punishable by up to 10 years in prison).

The circumstances of the case are as follows. At the beginning of June 2000, on the territory of one of the airfields near Moscow, during the inspection of an IL-76 aircraft that arrived from the Kamchatka region, a car was discovered, in the cabin of which 5 special containers-parcels with spot gold with a total weight of 97,510 grams were found. The chairman of the artel accompanying the cargo testified that the mineral raw materials belonged to his artel and he was taking it to the Prioksky Non-Ferrous Metals Plant for refining. This case received a lot of attention in the media. Much has been said about the mistake of law enforcement agencies regarding the chairman of the Kamchatka artel. So, according to the defendant’s lawyer, what happened was nothing more than a misunderstanding. The chairman of the artel had all the documents for the raw materials and took them to the plant for refining. The unusual method of transportation was chosen out of a desire to save on field communication services, which were usually used to deliver gold ore to refineries. Such services would cost the artel approximately 45 thousand dollars.

According to the lawyer, his client deserves a maximum administrative fine for violating the rules for transporting precious metals. However, this does not comply with current regulations. According to paragraph 3 of Art. 29 of the Law on Precious Metals, transportation of precious metals is carried out by air, water, rail and special road transport, equipped with appropriate technical means, accompanied by armed guards.

Furthermore, in accordance with Art. 22 of the Federal Law “On Postal Services”, the acceptance of postal items containing precious metals from legal entities operating within the powers established by law, their transportation and delivery are carried out exclusively by the forces and means of special communications of the federal executive body that manages activities in the field of communications .

As follows from the case materials, this requirement of the Law was violated, and intentionally, since the chairman of the artel knew about the need to transport precious metals only by special courier service, but decided to save money. In the above case, all the signs of a crime under Part 2 of Art. 191 CC. The actions of law enforcement agencies to initiate a criminal case seem justified. As for administrative liability for “violation of the rules for transporting precious metals,” there is no such rule in the current legislation.

01/23/2012 - RIA Novosti. A court in Yakutia sentenced a local resident to three years of suspended imprisonment for illegal possession of more than two kilograms of natural gold, which he hid in a cache in the forest, the press service of the GUMVD of the Russian Federation for the Far Eastern Federal District reported on Monday.

It is noted that last fall, operatives caught a man red-handed when he took out hidden gold. In addition to the precious metal, electronic scales and personal documents of the detainee were found in the cache.

The examination showed that the seized spot gold contained more than 1.7 kilograms of chemically pure gold and about 180 grams of silver. The total cost of precious metals is more than three million rubles.

“The court found the man guilty under Part 2 of Article 191 of the Criminal Code of the Russian Federation (illegal trafficking in precious metals committed on a large scale) and sentenced the man to three years of suspended imprisonment with a probationary period of 1.5 years,” the report says.

23.03.19 - Vladivostok. The Pacific Fleet Military Court in Vladivostok sentenced former FSB investigator Konstantin Kostenko to 11 years in prison for theft of industrial gold seized during investigations by intelligence officers. Precious material evidence disappeared from the office of an FSB major.

Former senior investigator of the Federal Security Service of the Russian Federation for the Magadan Region, Konstantin Kostenko, was accused of stealing gold nuggets weighing 1.5, 2.5 and 8 kg (exact total weight - 12,114.37 g) in 2013-2015 "for selfish motives" ) worth 22.6 million rubles. These nuggets were material evidence in several criminal cases of illegal trafficking in precious metals, which were led by Major Kostenko.

Having access to gold nuggets, the indictment states, investigator Kostenko replaced them with less “precious metals.” Having committed the theft, Major Kostenko, according to investigators, sold the gold from March 2 to April 6, 2015, “causing his actions to damage the state on an especially large scale.”

Based on the fact of the loss of native gold from material evidence in March 2016, a criminal case was opened under paragraph “b” of Part 4 of Art. 158 of the Criminal Code of the Russian Federation (“Theft”). Initially, the proceedings were conducted by the military investigative department of the Investigative Committee of Russia for the Khabarovsk garrison, and on December 28, 2016, the case was transferred to a higher investigative body - the military investigative department of the Investigative Committee of the Russian Federation for the Eastern Military District. In March of the following year, investigator Kostenko came under suspicion, and on July 12 he was detained.

According to the investigation, Konstantin Kostenko actively opposed the “criminal proceedings.” Thus, he “re-registered property acquired from funds received as a result of criminal activity” to other persons, and “for the purpose of conspiracy and hiding traces of his criminal activities, he began to use Internet messengers (Skype, WhatsApp), stopping the use of telephone communications.” In addition, according to the investigation, through his father, Major Kostenko put pressure on witnesses in order to persuade them to refuse to testify.

At the same time, Konstantin Kostenko himself insists on his innocence.

“Other employees of the FSB department also had the keys to Kostenko’s office, where the gold exchange allegedly took place,” said the defendant’s lawyer, Sergei Radmaev. He added that neither gold nuggets nor large sums of money were found on his client, and he did not make expensive purchases.

The investigation believes that he exchanged gold for other precious metals.

— The court sentenced him to 11 years in prison in a general regime colony and a fine of 500 thousand rubles. The court also satisfied the claim of the Gokhran of Russia for compensation of the value of stolen native gold in the amount of 23.8 million rubles,” commented the representative of the prosecution.

1. Conducting 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, with the exception of jewelry and household products and scrap of such products, committed on a large scale -

2. The same acts committed by an organized group or a group of persons by prior conspiracy, -

Comments on Article 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.

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 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.

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.

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.

A mandatory sign of the composition is the performance of actions with the specified objects in a large size. 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 one million five hundred 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.

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 guilty objects from one place to another, accomplished using any type of transport (for example, in a train, car, plane). Forwarding 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; processed precious stones, precious metal nuggets, 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, which 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 years.

A qualifying feature is the commission of a crime 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), by an organized group (see Part 3 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto).