A Specious Drug Law

Today, hundreds of people accused of illegal possession and distribution of narcotics are in Moscow prisons and remand centers. In their confusion, the courts and prosecutors cannot determine the degree of their guilt. The prisoners' lives are on the edge of a precipice. They await either freedom, a cure or 15 years of imprisonment.


The new Criminal Code, which was adopted Jan. 1 this year, brought some changes to the lives of drug users that have had a direct impact on the fate of those people who find themselves outside the law. In some cases, the modification of the criminal statutes has strengthened the degree of responsibility for certain crimes and, in others, it has lessened the punishment. The transition from the old code to the new, however, has left a legal muddle in its wake, which essentially violates human rights and threatens freedom.


Article 228, sub-article 4 of the new Criminal Code of the Russian Federation states: "Illegal preparation, acquisition, storage, transport, shipment or sale of narcotic means or substances in large amounts is punishable by deprivation of freedom for a term of seven to 15 years, with the confiscation of property."


What is considered to be a large and especially large amount of narcotics? Let's look at the list that was recommended in December 1996 by the Health Ministry's Permanent Committee on Narcotics Control, which defines in detail the amount of narcotic substances in grams and milligrams for which a person can be held criminally responsible.


For example, heroin up to .005 grams is considered a large quantity. More than that is especially large. Up to .0001 grams of LSD is a large quantity. Over that amount is especially large. There are similar measures for many other powerful narcotic substances.


Stop. Herein lies the speciousness of the law.


First of all, .005 grams of heroin or .0001 grams of LSD can be seen by a normal person only under a microscope. And the odor? It can be detected by a well-trained dog. Secondly, the measurement that is applied to convicted drug addicts raises serious concerns on the part of lawyers because the presence of a minimal dose detected in a tablet can make an innocent or sick person into a criminal. Finally, the list that is used in Article 228 to sentence the accused person contradicts the constitution of the country.


Moscow lawyer Sergei Zabarin has run up against Article 228 in his attempts to defend people arrested with quantities over the above-mentioned amount. "If in the old Criminal Code the amount of grams or milligrams of hashish or heroin that was considered criminal was precisely spelled out," he said, "the new one lacks exact limits of the minimum that is permitted a sick person or simply a casual user of one or another narcotic."


Let's leave aside the question of whether a drug addict is necessarily a criminal. A person who has long used forbidden drugs, according to the old list of illegal drugs, knows that one gram or less can be kept for personal use. The fact that .005 grams of heroin is classified as an especially large dose is nonsense. An especially large amount, as a rule, presupposes that the narcotics will be sold and that the person caught with the drugs has a profit motive. Suppose a drug addict goes to the market, buys some one-hundredth or one-thousandth gram of narcotics for his own use. If he is caught red-handed, he can get 15 years.


What is the particular danger in the list drawn up by the Committee on Narcotics Control? Any person who accidentally comes in contact with narcotics, whether they be heroin or other hard drugs, or runs into a drug addict or uses his clothes, runs the risk of landing in prison. To put it crudely, if there is one-millionth of a part of the substance found in his pocket, then the criminal statute begins to apply. Muscovites live in a city of 10 million inhabitants of which, according to the Interior Ministry, about 200,000 people regularly take narcotics, and there are no special cases made. Absurd? No, this is a reality.


To clarify the possibilities for miscarriage of justice, I spoke with a specialist from the anti-narcotics department of the Interior Ministry. He agreed that Article 228 is not perfect. But he was sure that prosecutors and witnesses are not fools and can fully distinguish between criminal drug dealers and casual users or drug addicts. Often, a person arrested with a small quantity is let go by the police or called to account for the narcotics. But if the inspectors come across a big shark from the criminal world that they haven't succeeded in reeling in, then one-millionth of a dose of heroine is enough to send the person to prison for many years.


This is the kind of double standard that is now being applied to those accused of drug abuse. Everything depends on the mood, political views, ethnic tolerance and even sexual orientation of the law enforcement bodies.


In February, State Duma Deputy Yury Shchekochikhin wrote to Justice Minister Valentin Kovalyov, requesting that he provide the legal basis for Article 228 of the Criminal Code and the lists of dosages. He has not yet received a reply.


Meanwhile, many people have fallen within this legal clause. Judges and prosecutors are racking their brains over how to get out of this dead end. But while they are thinking, thousands of imprisoned people are for months and years awaiting a verdict on their future.


My advice to residents of Russia: Bring your clothes to the dry cleaners more often. It is not only hygienic, but the only way to be completely safe.





Mumin Shakirov writes for Novaya Gazeta. He contributed this comment to The Moscow Times.