Drug trafficking (Article 307): what are the lines of defense?

• Article 307 of the Criminal Code punishes unlawful drug trafficking, as well as production, acquisition and possession with intent to sell; it is much stricter than Article 309.
• The key question for the defense is whether the intent to sell and the actual transfer of the drug are really proven.
• Entrapment is prohibited; evidence obtained through it may be inadmissible.
• The expert examination, the testimony of the “buyer” and the lawfulness of the operative actions are all subject to verification.
• Attorney Kobets builds the defense in Article 307 cases at every stage.

Article 307 of the Criminal Code is one of the most serious charges in drug cases. Attorney Oleksii Kobets, with more than 25 years of experience and a background in investigative bodies, knows what such a charge is built on and where it is vulnerable. Below are the main lines of defense.

What does Article 307 of the Criminal Code provide?

Article 307 of the Criminal Code establishes liability for the unlawful production, manufacture, acquisition, possession, transportation or shipment with intent to sell, as well as for the actual sale of narcotic drugs, psychotropic substances or their analogues. This is a grave crime, and the penalty is much stricter than for possession without intent to sell under Article 309. The gravity increases with repetition, commission by a group, large amounts or involvement of minors.

How are intent to sell and the sale itself proven?

The investigation substantiates intent to sell with a set of indicators: a significant quantity, packaging into doses, scales, wrapping, correspondence. The sale itself is often documented through a controlled purchase and the testimony of the person acting as the “buyer”. The defense checks whether intent to sell is really proven, whether the case is actually about possession for personal use, and how reliable the testimony and covert operation materials are.

Example. The only evidence of the sale is the words of a “buyer” who acted under police control, without any other objective confirmation of the transfer of the drug. The defense stresses the interest of such a witness and the lack of independent evidence, which undermines the prosecution.

What about entrapment?

If a person was induced to sell drugs they would not otherwise have sold, that is entrapment, prohibited by Article 271 of the CPC and by the case law of the European Court of Human Rights. Signs of entrapment: the initiative came from law enforcement, repeated persuasion, pressure or the creation of artificial conditions. Evidence obtained through entrapment may be declared inadmissible, and the charge loses its foundation.

How are the operative actions and the expert examination verified?

The defense analyzes the lawfulness of the controlled purchase and covert investigative actions: whether there were grounds and authorizations, and whether the procedure for conducting and recording them was followed. The expert examination is checked separately: the type and amount of the substance, the procedure for seizure and storage, the integrity of the packaging. Any violations found can make the key evidence inadmissible.

How can a lawyer help?

The lawyer assesses the evidence of intent to sell, the lawfulness of the purchase and covert actions, the quality of the expert examination, looks for signs of entrapment, and pushes for requalification to Article 309 in the absence of intent to sell and for a milder measure of restraint. His background in investigative bodies helps attorney Kobets see the weak points of the prosecution. Defense is provided at all stages in Kyiv and beyond.

Frequently asked questions

How does Article 307 differ from 309?
Article 307 covers trafficking or possession with intent to sell and is much stricter, while Article 309 covers possession without intent to sell.

Is requalification to 309 possible?
Yes, if the investigation has not proven intent to sell. This is one of the main lines of defense in Article 307 cases.

What is entrapment?
It is inducing a person to sell drugs by law enforcement. Evidence obtained through entrapment may be declared inadmissible.

How reliable is the “buyer’s” testimony?
This is an interested witness, so their testimony is verified and compared with other evidence; such testimony alone is often not enough.

This material is for information purposes only and is not legal advice or a guarantee of any result. Every case is unique, and the application of legal rules depends on specific circumstances. For an assessment of your situation, seek a personal consultation with a lawyer. The author complies with the Rules of Attorney Ethics and the Law of Ukraine “On the Bar and Practice of Law”.