Eliminating lacunae in the timber illegal trafficking and felling investigation (on the practice of the courts of the Zabaikalsky Krai)

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Introduction
Forests are vital components of the Earth's ecosystem, serving as the lungs of our planet and providing oxygen to the world's population.They also play a critical role in various industries and international trade, making them a significant economic asset.However, this integration into daily activities and commercial industries exposes forest plantations to threats and vulnerabilities, resulting in criminal behaviour among forest users.This criminal activity includes not only illegal harvesting but also facilitates the trafficking of forest resources.
Global trade cooperation plays a crucial role in countering trafficking.Countries like Ghana have formal trade and customs arrangements to help combat illegal activities.However, not all countries have such arrangements, making it difficult to effectively share information on questionable shipments and apply measures to stop them [1].
Illegal timber harvesting, such as in Africa and Indonesia, continues to deplete the world's forests, with global climate impacts.Hunting for wildlife is often accompanied by harvesting in the rainforest of the Congo Basin, where poachers use the infrastructure created by timber companies to extract animals [2].
There are various options: use for timber concessions or plantations, agriculture, mining, urban development, or conservation.
It is important to emphasise that respecting the rule of law in land allocation is critical for effective land use management and a more sustainable development path.
No matter what balance the state strikes, respecting the rule of law in land allocation is integral to effective land use management and a more sustainable development path [3].
Although forest crimes account for less than 1% of the total number of crimes, they represent a significant environmental problem in the Transbaikal Territory.This region, especially the Chita district of the Zabaikalsky Krai, is a landscape of vast forested areas of great importance to the subject and the entire country.

Problem statement
Activities related to the felling and burning forests to clear forest land for subsequent afforestation are a significant cause of deforestation [4].
Illegal harvesting and related offences have detrimental consequences, including environmental degradation, loss of bioresources, disturbance of ecosystems and negative socio-economic impacts as they carry destructive functions and processes necessary for stable ecosystems, leading to biodiversity loss [5].
According to its field of activity, the economic sector tends to expand areas for extracting necessary resources by felling down forests.The plantation sector, for example, palm oil mining, has triggered widespread encroachment of forest areas because of the underlying economic interest.The incentives promised through the REDD+ programme need to be clarified.Stakeholders await clarity on reducing deforestation and forest destruction [6].
Using FAO statistics, the magazine Reports for Brazil 2015 found that Brazilian timber consumption in 2012 was 25% higher than supply, indicating potential illegal trade.Illegal harvesting has become more attractive than legal harvesting because of unrestricted access to timber and lower transaction costs [7].
Russia has always been and remains the most significant forestry power, possessing onequarter of the world's forest resources.Most of these resources are represented by highly liquid wood species, which occupy stable positions on world markets [8].
The main types of trafficking are related to "understatement of the customs value of goods and resources, falsification of codes of commodity nomenclature and countries of goods producers, as well as fictitious transactions, creation and registration of new legal entities ... subsidiaries, which ensures the receipt of new licences of customs carriers and the resumption of illegal activities.Crimes related to the illegal movement of strategically important goods and resources across the state border of the Russian Federation continue to be committed in the sphere of foreign economic activity" [9].
Combating forest crime requires a multi-stakeholder approach involving various stakeholders, including law enforcement agencies, government agencies, professional organisations and local communities.
A strategy to combat illegal harvesting and forest trafficking should include: -Strengthening existing laws and regulations on forest management, harvesting permits, and confiscating vehicles and equipment used in illegal activities.
-More precise definitions of forest offences and stricter penalties would serve as a deterrent.
-Strengthening oversight and control mechanisms, such as increasing the number of forest rangers and using advanced technologies such as remote sensing and satellite imagery to detect and monitor illegal activities.
-Strengthening cooperation with neighbouring countries, especially the PRC, through information sharing, joint operations and harmonisation of legislation to combat cross-border trafficking.
-Educating the public on the importance of forests, the consequences of illegal harvesting, and their role in reporting suspicious activities.Encouraging public participation in efforts to protect forests can enhance surveillance and serve as an essential deterrent factor.
-Providing training and resources to law enforcement agencies and other stakeholders to improve understanding of forest offences, investigation techniques and legal procedures.
"Some of the main forms of illegal forest trafficking are harvesting of forest plantations without appropriate permits, exceeding authorised harvesting volumes, illegal obtaining of harvesting permits, use of forged documents in timber harvesting and transportation" [10].
Illegal timber export is often carried out by "organisations that either do not have a real address, or are registered to fictitious persons, or have ceased their activities.These companies use illegally obtained documents for customs procedures, including contracts, licences, import transaction passports, commission agreements, invoices, etc.To legalise illegally harvested timber, they submit forged sales contracts, foreign trade contracts and other documents when obtaining licences.These documents are used to export valuable timber species" [11].
A method of contraband known as non-declaration occurs when a person fails to fulfil the obligation to declare goods, including using forged documents for forest products [12].
The illegal movement of timber across borders has reached alarming proportions."Most cases of timber trafficking are detected by customs authorities in the Far Eastern and Siberian regions.At the same time, the detected crimes are characterised not only by large volumes of illegally exported timber, but also by the stability of illegal schemes and coherence of criminal groups that organised them" [13].
Following the Strategy for the development of the Russian forest industry until 2030, to strengthen interagency cooperation, joint actions to combat criminal groups and organised criminal structures involved in illegal harvesting and timber trafficking are envisaged.This also includes reducing the share of shadow and criminal sectors in the economy and reducing the level of corruption in the business environment in the forest industry [14].
The study of forest crimes, particularly illegal harvesting and trafficking of forest resources, is crucial to understanding the challenges faced by the region and developing effective strategies to combat these crimes.By examining a specific case from the Chita District Court of Zabaikalsky Krai and given the region's border location with the PRC, this study aims to shed light on the causes of timber trafficking and methods of combating criminal timber traders using international cooperation to improve legislation.
For decades, the Chita District Court of Zabaikalsky Krai has been handling many criminal cases on illegal felling and harvesting of timber.The court's records provide valuable insight into the scale of these offences and the challenges of prosecuting them.
According to official data from the court's website, 20 criminal cases in this category were heard in 2017, resulting in convictions of 26 individuals.The total damage caused by illegal felling totalled more than 8 million rubles, with only 305781 rubles recovered, which is 3% of the total damage.
In the following year, 2018, 32 cases against 53 persons with damage exceeding 5.5 million rubles, of which 236,408 rubles were compensated, which is 4% of the total damage.
In 2019, the Chita District Court of Zabaikalsky Krai considered 19 criminal cases, resulting in the conviction of 27 persons.However, compensation for damage was made partially by one convicted person for committing 24 episodes of illegal harvesting.The total damage caused was more than 1.5 million roubles, of which only 172482 roubles were compensated, which was 11 per cent.
In 2020, the court considered 17 criminal cases in which 33 persons were convicted.The damage exceeded 7.2 million rubles; 237,123 rubles were reimbursed, which is 3% of the total damage.
In 2021, 22 cases were considered, and 47 persons were convicted.Most of them were sentenced to real sentences.In one case, the damage from illegal felling exceeded 13.3 million rubles.The total damage from the reviewed cases in 2021 amounted to 49,297,186 roubles, and 6,225,907 roubles were compensated.
In 2022, 20 cases were considered, 28 persons were convicted, the damage totalled 24.007 million roubles, and 925417 roubles were reimbursed.
Thus, from the court sentence of 28 November 2022 , it follows that three defendants were convicted on 26 episodes of part 3 of article 260 of the Criminal Code of the Russian Federation.The damage from these crimes amounted to 3,921492 rubles.At the same time, the court took into account that the cars of the defendants were used to drive to the place of illegal harvesting, later to transport the illegally harvested timber to the final location of disposal of the timber, and served as a means of committing the crime, the defendants owned these cars before the commission of the crimes, and at the time of the commission of the crime, in this regard, the vehicles belonging to them were confiscated to the state as another means of committing the crime under paragraph "d" of part 1 of article 104.1 of the Criminal Code of the Russian Federation.The car, which did not belong to the defendants, was returned to its legal owner.A similar situation occurred with chainsaws.
The main mistakes made by the courts in solving the issue of confiscation of instruments and other means of committing an offence according to the practice of the courts of the Transbaikal Territory.
Physical evidence -tools, equipment or other means of committing an offence, including vehicles, with the help of which illegal felling of forest plantations was carried out, can be confiscated if they belong to the accused (paragraph "d" part 1 of article 104.1 of the Criminal Code of the Russian Federation), in this regard, the court is obliged to identify their owner.
When resolving the issue of confiscation of instruments and means of committing a crime, courts, as a rule, taking into account the provisions of paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 18 October 2012 № 21 "On the application by courts of legislation on liability for violations in the field of environmental protection and natural resources management", according to which the felling of forest plantations is understood as felling of forests, as well as other technologically related processes, including skidding, partial processing and (or) storage of wood in the forest.
A study of judicial practice has shown that in criminal cases involving offences under Art.260 of the Criminal Code of the Russian Federation, only the tools of the crimechainsaws -were confiscated from the convicted persons.
Decisions to confiscate the means of committing the offence (motor vehicles and tractors) were made by the Karymsky, Nerchinsko-Zavodsky, Sretensky, Petrovsk-Zabaikalsky, Khiloksky and Chita district courts and by magistrates of judicial districts No. 65 (Aginsky judicial district), No. 47 (Petrovsk-Zabaikalsky judicial district) and No. 58 (Uletinsky judicial district).In cases where vehicles belonged to third parties or were not recognised as a means of committing an offence, they were returned to the owner.
Instruments, equipment or other means of committing an offence belonging to the accused are subject to confiscation (art.104.1, para. 1 (g), of the Criminal Code).
On 15 November 2019, the Chita District Court of the Zabaikalsky Krai sentenced B.S.A. and N.A.V. to imprisonment under part 3 of Article 260 of the Criminal Code of the Russian Federation.
As follows from the verdict, when committing the crime, the convicted persons used as the instrument of crime a chainsaw belonging to N., which was seized during the inspection of the incident scene and was stored in the evidence chamber of the OMVD for Chita district.
The court, in violation of paragraph "d" of part 1 of article 104.1 of the Criminal Code of the Russian Federation, returned the instrument of the crime -the chainsaw -to its owner and did not motivate its decision in this part.
The court of appeal instance on the prosecutor's proposal changed the verdict, decided to confiscate the material evidence -chainsaw "Stihl" to the state income and to transfer for sale to the Federal Agency for the Management of Federal Property in the Transbaikal Territory, and the money received from its sale to be credited to the Federal Budget.
Upon further investigation, it was discovered that similar cases to the one in question have arisen in other courts located within the Trans-Baikal Territory.
M. was sentenced by the Petrovsk-Zabaikalsk City Court of the Zabaikalsk region on 20 March 2019 under part 3 of article 260 of the Criminal Code of the Russian Federation (illegal felling of forest plantations on an enormous scale) to a suspended sentence of imprisonment.
As follows from the verdict, M., using a device "feller buncher" and a horse as instruments of committing the offence, hauled illegally harvested timber from the place of felling to the loading area.
Taking into account the defendant's material situation and the circumstances of the case, the court, in the operative part of the verdict, allowed the legal owners or proprietors to dispose of the horse and the "feller buncher" device upon entry of the sentence into legal force.
Having considered the said case, the appeal instance stated the following.M. had used the horse and the "feller buncher" device as a means and instrument of committing an offence for skidding illegally felled trees; the horse was to be confiscated and the "feller buncher" device destroyed, but they were returned to the owner.
No reasons were given in the judgement, nor any information that the horse was M.'s main legal source of livelihood.The sentence in this part contradicts the requirements of Article 81 of the Code of Criminal Procedure of the Russian Federation and paragraph "d" of part 1 of Article 104.1 of the Criminal Code of the Russian Federation.
Having overturned the verdict in the part of the decision on the fate of the material evidence -the horse, the court of appeal instance referred the criminal case for a new consideration per Art.397 of the CCrimP of Russia, and also, amending the verdict, decided to destroy the device "feller buncher".
In resolving the issue to be considered in the order of execution of the sentence, the court found that the horse was the means of committing the offence and was handed over to the owner -M., against a safe hand receipt, but the convicted person lost it.
By virtue of part 1 of article 104.2 of the Criminal Code of the Russian Federation, if confiscation of a certain object included in the property referred to in article 104.1 of the Criminal Code of the Russian Federation is impossible at the time of the court's decision on confiscation of this object due to its use, sale or for any other reason, the court shall decide on confiscation of a sum of money which corresponds to the value of this object.
The Petrovsk-Zabaikalsk City Court recovered from M. a sum of money corresponding to the average district price of the horse -29108 rubles.
The vehicle, used for skidding illegally harvested timber, was recognised as material evidence, an instrument of crime, subject to confiscation.As follows from the verdict, on 9 October 2018, T. and Z., by prior conspiracy, using a tractor belonging to a third party, illegally harvested 58 pine trees, causing damage on a large scale.They hooked the timber to a GAZ-53 vehicle they owned and skidded it to a loading area.Considering that the convicted persons had carried out the technological process (skidding of illegally harvested timber) with the help of their GAZ-53 vehicle, the court confiscated the vehicle as an instrument of crime.
Under As follows from the verdict, he used a GAZ-53 vehicle belonging to him when removing timber from the crime scene.
Resolving the issue of confiscation of instruments and means of committing the crime, the court ruled that the felled timber and the chainsaw should be returned to the state, and the axe should be destroyed.Taking into account that B. is engaged in a peasant-farming business, the main activity of which is the production, transportation and sale of agricultural products of his production, the court recognised that confiscation of the GAZ-53 vehicle belonging to the defendant would put him and his family in a difficult financial situation, the vehicle being a source of livelihood for him, and left it at B.'s disposal.
According to paragraph "d" of part 1 of Article 104.1 of the Criminal Code of the Russian Federation,instruments, equipment and other means of committing an offence belonging to the accused are subject to confiscation if they contribute to the criminal result.
Z.. was convicted on 17 June 2021 under part 3 of article 260 of the Criminal Code of the Russian Federation (Nerchinsk district court).Resolving the issue of material evidence, the court ruled that the MTZ 80 tractor and the tractor metal cart handed over to Z. against his receipt should be allowed for his use; the STIHL MS 250 chainsaw should be confiscated; the saws of wood fragments should be destroyed.The prosecutor in the appeal requested to change the sentence and confiscate the tractor and tractor cart recognised as material evidence in the case.In modifying the verdict, the appellate court pointed out the following.It was established in the court session that Z., in addition to felling down forest plantations and felling them into fragments, loaded the cut fragments onto a tractor cart and took them out with the help of the tractor.Considering the remoteness of the place of felling down trees and the need to deliver a chainsaw with a reserve of fuel, implementing the objective side of the crime was impossible without a vehicle -a tractor and cart to get to the place of illegal harvesting.Hence, the court's conclusions of the first instance that the tractor and cart are not the means of committing the crime are unfounded.In refuting the defence arguments that the tractor and cart were Z.'s primary legal source of income and could not be confiscated, the judicial board noted that Z. had a permanent source of income in the form of a pension, maintained a livestock farm, which brought him income, from which he paid, among other things, the salary of a shepherd-pastoralist hired by him for the farm.The Judicial Board, following paragraph "d" of part 1 of Article 104.1 of the Criminal Code of the Russian Federation, decided to confiscate the MTZ-80 tractor and the tractor cart belonging to Z. and turn them into the state income (Appellate ruling of 7 September 2021).
On the same grounds, the verdict of the Khiloksky District Court of the Zabaikalsky Krai of 1 June 2021 was changed in respect of K., convicted under point "g" of part 2 of article 260 of the Criminal Code of the Russian Federation (illegal felling of forest plantations on a large scale).
Changing the verdict, the court of appeal instance noted that in the course of illegal felling, K., using his car VAZ-2121 and a single-axle cart as means of committing the crime, delivered a chainsaw to the place of felling, carried out the removal of illegally cut wood to the forest receiving point.
The court's decision to hand over the car and the cart to K. contradicts the provisions of Article 81 of the Code of Criminal Procedure of the Russian Federation and Article 104.1 of the Criminal Code of the Russian Federation.
The court's conclusions that the car and the cart are a source of life and living conditions for K. and his family are unfounded.The materials of the criminal case show that K.'s main source of income is his work as a driver in the organisation, not the car and cart.
The court of appeal, following paragraph "d" of part 1 of article 104.1 of the Criminal Code of the Russian Federation, decided to confiscate the VAZ-2121 car and a single-axle cart belonging to K. and to turn them into state income (Appeal ruling of 7 September 2021).
As of 24 October 2023, "Chita District Court of Zabaikalsky Krai for 2023 considered 18 criminal cases against 21 persons.05.08.2023Chita District Court of Zabaikalsky Krai considered criminal case No. 1-178/2023 against Kolmogorov A.A. and others for a number of crimes under part 3 of article 260 of the Criminal Code of the Russian Federation" [18].The damage from their crimes amounted to 3,148,617 rubles.One defendant was partially compensated for the damage of 5,150 rubles.
Analysing judicial practice, it becomes evident that more than half of criminal cases related to illegal harvesting concern large-scale operations conducted by organised groups or individuals acting in concert.As a rule, these actions are qualified under part 3 of article 260 of the Criminal Code of the Russian Federation, which refers to severe offences.
However, some serious problems arise in the investigation of such cases.One of the common problems is the impossibility of establishing the exact amount of damage caused by the offence due to the lack of relevant expert opinions and errors in establishing the coordinates of the boundaries of harvesting sites, which contributes to deficiencies in the investigation, as such errors lead to an incorrect determination of the category of forests.In addition, errors are made in recognising material evidence and instruments of the crime of seized objects used in committing such crimes and in the failure to identify their owner.
In addition, a study of court practice shows that, owing to gaps in the preliminary investigation, the court is often faced with the need to reclassify the actions of the perpetrators to other less severe offences: seized equipment, such as chainsaws and machinery, is sometimes returned to the perpetrators.These shortcomings in the investigation process create problems in proving the circumstances of the case and imposing a more lenient punishment.
In the Chita district of the Zabaikalsky Krai, forest plantations mainly consist of specially protected forests located in nature reserves and buffer ecological zones.This feature significantly increases the value of these forests, affecting the determination of the damage caused to the forest fund and leading to a stricter qualification of the committed offences.
The criminal case against R. et al. (Chita District Court), on several episodes of part 3 of article 260 of the Criminal Code of the Russian Federation, highlights some of the difficulties arising in considering these cases.The defendants challenged the ownership of chainsaws used as instruments of crime.During the trial, it emerged that the investigator had failed to record the serial numbers of the chainsaws when seizing them, creating difficulties in proving the case.The defendants tried to mislead the court by presenting information about purchasing other chainsaws with the original passports for the chainsaws.However, despite these difficulties, the guilt of all the defendants was proved, and a conviction was handed down.The convicted persons appealed the verdict, but the Court of Appeal upheld it and entered into legal force.
"The object of offences related to the illegal use of forests are public relations in the field of protection and rational use of forest plantations or trees, shrubs and vines not classified as forest plantations.Public relations regulating the established by the legislation of the Russian Federation turnover of timber as a natural resource on the territory of the Russian Federation, as well as public relations regulating the established procedure for the movement of timber and timber as a natural resource through the customs of the Customs Union within the EurAsEC or the State border of the Russian Federation can act as an additional object" [15].
The high International demand for high-quality timber, especially in China, which borders the Trans-Baikal Territory, is a significant factor contributing to the growth of crime in the timber industry.
Chita Customs revealed criminal activity related to the trafficking to China of lumber worth RUB 8.1 million in a volume of more than 1,100 cubic metres of pine lumber moved under forged documents through the Zabaikalsk railway checkpoint.Only for"the first half of 2021, Chita Customs initiated 20 criminal cases against members of an organised criminal group involved in the illegal export of timber to China through Zabaikalsk" [16].The total timber valuethis criminal group exportedwas estimated at approximately 100 million rubles.The activities of this gang were suppressed in May.In addition, "Chita Customs has opened six more criminal cases on timber trafficking involving Chinese citizens and residents of the Zabaikalsky Krai and Irkutsk Oblast.Chita Customs has already initiated 14 criminal cases on trafficking of more than 19.5 thousand cubic metres of timber worth more than 82.8 million rubles" [16].
" 191.1 of the Criminal Code of the Russian Federation, the size of the received as a result of the commission of acquisition, storage for sale and sale of knowingly illegal timber was 1237.995m³ for a total amount of 2362609 rubles 43 kopecks; on the episode under part. 2 of Art.174 of the Criminal Code of the Russian Federation, the amount of legalised assortment of coniferous species "pine" is 1237.995m³ for a total of 2,362,609 rubles 43 kopecks; under Part 3 of Art.226.1 of the Criminal Code of the Russian Federation on the fact of trafficking of strategically important resources, the amount of sawn timber illegally exported to the PRC is 16968.61m³ with a total value of 174575,435.29 rubles" [17].
"Given the colossal amount of illegally harvested timber only on the territory of Chita district of the Zabaikalsky Krai according to the materials of criminal cases of one court, speaks about the scale of destruction of forest plantations in the Russian Federation as a whole" [17].
"Criminal activity in the sphere of forest management leads to various negative consequences, such as reduction of bioresources, forced migration of wild animals, increase in forest fires, drainage of water bodies.The above analytical statistics clearly demonstrate the urgent need to strengthen the protection of forest resources, and the fight against crime in the forestry sector requires novelty and improvement.In this regard, it is necessary to outline the main problems that exist at the present stage in regulating criminal liability for these acts" [18].
One of the main problems associated with illegal harvesting is the involvement of organised groups or communities.
While criminal cases are usually initiated against individuals caught in the act, i.e., the perpetrators, the organisers of criminal groups behind this illegal activity often remain unidentified due to the lack of evidence; in addition, the perpetrators often never even met the organisers, as they are led by other individuals who are members of criminal communities.This allows them to operate covertly, using tactics such as fictitious documents and frontmen to register temporary companies.As a result, they can continue to profit from the large-scale destruction of forest plantations while evading criminal prosecution.

Conclusion
To effectively combat illegal harvesting and identify these "black loggers", law enforcement agencies need to work ahead of the crime by identifying the masterminds behind these crimes.Prosecuting individual criminals will never solve the root of the problem, as new individuals easily replace those apprehended while the organisers continue to carry out their illegal activities.
Statistics cited from cases heard by only one court in the Russian Federation demonstrate the enormous scale of illegal harvesting and emphasise the urgent need to address the problem comprehensively.Efforts must be directed at finding and prosecuting the organisers to suppress their activities and prevent further destruction of forest plantations.This requires improved investigative techniques, the collection of solid evidence against the masterminds and strategies that go beyond targeting the direct perpetrators of the crime.
Effective border management and proper functioning customs are key factors in countering contraband.However, many borders are too accessible and challenging to control appropriately, making them a target for international smugglers.In addition, customs and border guards can fall victim to corruption, especially in remote locations.Training, equipment, and maintenance issues also present additional challenges, especially with limited resources.
Reducing the above-mentioned investigative challenges requires a comprehensive approach that includes ensuring adequate resources, enhancing coordination and information sharing among relevant agencies, improving intelligence gathering, combating corruption, enhancing international cooperation, enacting and enforcing appropriate legislation, and investing in specialised training and competencies.By overcoming these obstacles, law enforcement agencies can combat trafficking and illegal harvesting more effectively, leading to the conservation of forests, biodiversity, the environment, and sustainable economic growth [19].
Chita District Court of the Zabaikalsky Krai is considering a multi-volume, multiepisode criminal case No. 1-160/2022 under part 1 of Art.226.1, part 3 of Art.191.1, part 2 of Art.174 of the Criminal Code of the Russian Federation: under the episode part.3 of Art.
paragraph 29 of Resolution No. 21 of the Plenum of the Supreme Court of the Russian Federation of 18 October 2012, "On the application by the courts of legislation on liability for violations in the field of environmental protection and natural resource use", instruments or other means of committing a crime are not subject to confiscation if they are the main legal source of livelihood for the perpetrator.B.B.B. was convicted on 22 March 2021 under part 3 of article 260 of the Criminal Code of the Russian Federation (Mogoytuisk District Court).