Drug offence lawyer under Article 307 of the Criminal Code of Ukraine: being “caught with a substance” is not yet a conviction

Imagine a typical situation. A young person receives a call from an acquaintance who asks to “help get” a certain substance — saying it is urgently needed and money is not an issue. The person agrees, finds the substance, hands it over — and within minutes ends up in handcuffs. The “acquaintance” turns out to be an undercover police agent who has just fulfilled a quota for solving a crime.

This is not a rare scenario. It is one of the most common ways in which cases are brought in Ukraine under Article 307 of the Criminal Code — illegal production, manufacture, acquisition, storage, transportation or sale of narcotic drugs. And in exactly such cases the lawyer’s task is not merely to “mitigate” the punishment, but often to determine whether there will be any conviction at all.

Why Article 307 is not about “caught, therefore guilty”
People tend to believe that a drug case is almost automatically a losing battle for the defence: there is a substance, there is an expert report, there is a search record. What is there to challenge?

In reality, Article 307 is one of the most complex provisions in terms of proof, for a simple reason: a significant share of such cases is built on the results of covert investigative measures — controlled purchases, undercover operations, the involvement of undercover agents. Wherever hidden investigation methods are used, there is always a risk that law enforcement did not uncover a crime but rather provoked it.

The difference between Article 307 (sale — a serious offence, up to 12 years’ imprisonment in aggravating circumstances) and Article 309 (possession without intent to sell — significantly lighter liability) often depends on one question: has the prosecution proved an actual intent to sell, rather than mere possession for personal use? This is the second key line of defence, alongside entrapment.

Entrapment: what does the European Court of Human Rights say?
The prohibition of entrapment is not a fiction invented by Ukrainian lawyers to delay proceedings. It is an established principle that has been shaped over years by the ECtHR.

The Court’s case-law contains several landmark judgments that have effectively set the rules of the game for all of Europe, including Ukraine. In a case against Portugal, the Court found a violation of the right to a fair trial where police agents themselves initiated contact with a person who previously had no involvement in drug trafficking and effectively pushed that person into committing a crime which would not have occurred without their intervention.

The key test that emerged from this case-law is the test of “passive” investigation. Law enforcement may record a crime that is already taking place or being prepared independently of them. But they may not create a crime that would not exist without their initiative.

And what does the Supreme Court of Ukraine say?
Recent Ukrainian case-law actively implements these standards. In its decisions (including case No. 303/7389/23 of 14 January 2025 and case No. 759/2271/18 of 17 October 2024), the Supreme Court consistently stresses that the mere fact of a person’s prior conviction or confidential cooperation with the police in the past is not, by itself, proof that there was no entrapment. Each such situation must be examined separately and in detail.

The Court has also repeatedly reminded lower courts of the prosecutor’s duty: any decision to monitor the commission of a crime must expressly set out circumstances confirming the absence of provocation, not merely state that an undercover purchase took place.

In practice, this means that if, when reviewing the case file, a defence lawyer sees that the initiative for selling the substance, the discussion of the price or the meeting place originated from the “buyer” — the agent — rather than the defendant, this is already a basis for challenging the admissibility of evidence obtained through such covert investigative action. And inadmissible evidence can collapse the entire evidentiary foundation of the prosecution.

What a lawyer actually does in such a case
Defence work under Article 307 rarely boils down to a speech in court. It starts much earlier:

• Analysing the lawfulness of covert investigative actions. Was the investigating judge’s authorisation issued before or after the controlled purchase actually began? Does the prosecutor’s decision comply with Article 271 §7 of the CPC in substantiating the absence of entrapment?
• Reconstructing the timeline of contacts. Who initiated contact first, who proposed the amount and subject of the “deal”, were there repeated insistent requests from the agent — all this is reflected in records and billing data, and the lawyer builds a full picture from it.
• Challenging the legal qualification of the act. Quite often what the investigation qualifies as sale under Article 307, in fact amounts to acquisition and possession for personal use under Article 309 — which is a dramatic difference in years of imprisonment.
• Working with expert evidence. The quantity and purity of the substance, proper seizure and packaging of physical evidence — any procedural breach at this stage may justify declaring the evidence inadmissible.
• Being present from the very first minute of detention to prevent pressure, self-incrimination or statements given without a lawyer, which are difficult to “undo” later in court.

The key takeaway
A case under Article 307 is not a formality with a predetermined outcome. It is a complex evidentiary construct that rests on the procedural impeccability of law enforcement actions. Scrutinising that impeccability is the lawyer’s main job: not to “negotiate a shorter sentence”, but to challenge the very lawfulness of how the case ended up in court in the first place.

If you or your loved one are suspected or accused under Article 307 of the Criminal Code of Ukraine, the window of time in which the outcome can be influenced is measured in hours, not weeks. The earlier a lawyer enters the case, the greater the chance to record procedural violations before they are “fixed” retrospectively.

Contact WINNER — we will help assess the situation, define the legal position and choose the best defence strategy for your particular case.
Author: Nazar Al-Mzirawi, attorney at law, Law Firm “WINNER”.