Correspondence in instant messengers concerning the preparation and implementation of criminal actions allows the court to use the qualification on the basis of "using the Internet", the Supreme Court of the Russian Federation indicates.
Thus, the highest instance rejected the convict's argument that he downloaded the application for quick messaging in order to communicate with colleagues and relatives, and not to violate the law, according to the definition of the Judicial Board for Criminal Cases studied by RAPSI.
It should be noted that cybercrimes are usually punished more harshly.
Arguments for the complaint
The Supreme Court of the Russian Federation considered the complaint of two defendants in a criminal case on the sale and attempted sale of narcotic drugs as part of an organized group on a particularly large scale, including using telecommunications networks, including the Internet.
One of the convicts believes that the examination of the Samsung A 70 electronic device, on the basis of which all his charges are based, was carried out illegally, since he was not notified of its conduct.
The second defendant, without disputing his participation in an organized group for the sale of prohibited substances, considers the qualification of his actions based on the use of information and telecommunications networks, including the Internet, to be erroneous.
In the complaint, the defendant indicates that he used only the Telegram app installed on his phone for official purposes, and also used it to communicate with relatives. This circumstance did not allow him to qualify his actions on this basis, the author of the complaint believes. In this connection, he asked to exclude his conviction on a qualifying basis "using information and telecommunications networks, including the Internet, and to mitigate the sentence imposed.
Sun position
The Supreme Court pointed out that during the investigation of the case, an expert examination of the mobile phones and laptop of the defendants was carried out, which recorded that Telegram was installed on their mobile equipment, an account was created in it, graphic images were found in the folders containing areas with caches- "bookmarks" of narcotic drugs, as well as directly pictures of various types of narcotic drugs, their advertising, as well as images of an online store that was engaged in illegal trafficking of prohibited substances. Also, advertising and information about employment by "pawnbrokers"were stored on phones and laptops.
Moreover, from the correspondence in messengers, it follows that one of the convicts was the curator of an online drug store, which is confirmed by the testimony of an interrogated law enforcement officer, who corresponded with "virtual sellers" as part of operational search activities, but after the arrest of the defendants, no one else answered his letters and messages, this is the highest authority.
Thus, as established by the court and follows from the case materials, convicted persons in the course of committing actions aimed at the sale of narcotic drugs used information and telecommunications networks, including the Internet, being registered in Internet messaging programs, having accounts, they transmitted information about the locations of narcotic drugs, about the places of their bookmarks, indicates the SUN.
"With such data, the actions of convicts were correctly qualified on the basis of the use of telecommunications networks (including the Internet)," the SUN explains.
He also explains that the fact that the accused became acquainted with the decision on the appointment of an expert examination after it was conducted cannot cast doubt on the legality of the appointment and conduct of an expert study. In addition, during the trial, the defendant had the opportunity to exercise his right to raise questions to the expert by submitting a request for an additional expert examination.
As a result, the Judicial Board decided to leave the verdict unchanged, and the cassation appeals were dismissed (No. 49 — UD23-21-A4).
Thus, the highest instance rejected the convict's argument that he downloaded the application for quick messaging in order to communicate with colleagues and relatives, and not to violate the law, according to the definition of the Judicial Board for Criminal Cases studied by RAPSI.
It should be noted that cybercrimes are usually punished more harshly.
Arguments for the complaint
The Supreme Court of the Russian Federation considered the complaint of two defendants in a criminal case on the sale and attempted sale of narcotic drugs as part of an organized group on a particularly large scale, including using telecommunications networks, including the Internet.
One of the convicts believes that the examination of the Samsung A 70 electronic device, on the basis of which all his charges are based, was carried out illegally, since he was not notified of its conduct.
The second defendant, without disputing his participation in an organized group for the sale of prohibited substances, considers the qualification of his actions based on the use of information and telecommunications networks, including the Internet, to be erroneous.
In the complaint, the defendant indicates that he used only the Telegram app installed on his phone for official purposes, and also used it to communicate with relatives. This circumstance did not allow him to qualify his actions on this basis, the author of the complaint believes. In this connection, he asked to exclude his conviction on a qualifying basis "using information and telecommunications networks, including the Internet, and to mitigate the sentence imposed.
Sun position
The Supreme Court pointed out that during the investigation of the case, an expert examination of the mobile phones and laptop of the defendants was carried out, which recorded that Telegram was installed on their mobile equipment, an account was created in it, graphic images were found in the folders containing areas with caches- "bookmarks" of narcotic drugs, as well as directly pictures of various types of narcotic drugs, their advertising, as well as images of an online store that was engaged in illegal trafficking of prohibited substances. Also, advertising and information about employment by "pawnbrokers"were stored on phones and laptops.
Moreover, from the correspondence in messengers, it follows that one of the convicts was the curator of an online drug store, which is confirmed by the testimony of an interrogated law enforcement officer, who corresponded with "virtual sellers" as part of operational search activities, but after the arrest of the defendants, no one else answered his letters and messages, this is the highest authority.
Thus, as established by the court and follows from the case materials, convicted persons in the course of committing actions aimed at the sale of narcotic drugs used information and telecommunications networks, including the Internet, being registered in Internet messaging programs, having accounts, they transmitted information about the locations of narcotic drugs, about the places of their bookmarks, indicates the SUN.
"With such data, the actions of convicts were correctly qualified on the basis of the use of telecommunications networks (including the Internet)," the SUN explains.
He also explains that the fact that the accused became acquainted with the decision on the appointment of an expert examination after it was conducted cannot cast doubt on the legality of the appointment and conduct of an expert study. In addition, during the trial, the defendant had the opportunity to exercise his right to raise questions to the expert by submitting a request for an additional expert examination.
As a result, the Judicial Board decided to leave the verdict unchanged, and the cassation appeals were dismissed (No. 49 — UD23-21-A4).
