Illicit Movement of Narcotics to the Territory of Ukraine Detected during Customs Control Forms a Complete Corpus Delicti - Smuggling of Narcotics - the Supreme Court

The Criminal Cassation Court within the Supreme Court considered cassation appeals of defence attorneys of four persons convicted, inter alia, of narcotics smuggling (Part 3, Article 305 of the Criminal Code of Ukraine).

In the cassation appeals, the defence attorneys, among other things, noted the incorrect qualification of the actions of those convicted under part 3 of Art. 305 of the Criminal Code of Ukraine on the grounds that narcotics had not entered the territory of Ukraine, therefore, in their opinion, there had been an attempt to commit a crime.

In the opinion of the panel of judges of the Cassation Court, these arguments do not merit attention given the following.

The movement of psychotropic substances across the customs border should be understood as their importation into the customs territory of Ukraine in any way. Smuggled items may be moved across a land, sea or air border both with persons crossing it and separately from them, for example in the case of sending goods by mail.

The mandatory element of the corpus delicti is the place of commission - the customs border. The customs border coincides with the state border of Ukraine, except for the borders of special customs zones. The borders of the territory of special customs zones are an integral part of the customs border of Ukraine.

If the smuggled items are discovered during the examination or re-examination of the goods or during a personal search, including a second one, when leaving Ukraine (exporting goods, sending mail), the deed is qualified under Articles 15 and 305 of the Criminal Code of Ukraine as an attempt at smuggling. However, the illegal movement of smuggled items found during customs control into the territory of Ukraine (i.e. importation into its territory) forms a complete corpus delicti of this crime.

It is established from the records of the criminal proceedings that the tablets containing the narcotic drug were found in specifically designed places of the accused persons' car during its inspection at the customs. Since it was during customs control that the specified narcotic drug was found, the court correctly classified the actions of those convicted under part 3 of Art. 305 of the Criminal Code of Ukraine.

More details on the resolution of the Criminal Cassation Court within the Supreme Court in the case No 344/11557/16-k (proceedings № 51-814km20) can be found at the link https://reyestr.court.gov.ua/Review/95946573.