Commentary on Article 259. Illegal Manufacture, Acquisition, Possession, Transportation, Dispatch or Sale of Narcotic Drugs or Psychotropic Substances of the Criminal Code of the Republic of Kazakhstan

1. Illegal acquisition or possession, without the intent to sell, of narcotic drugs or psychotropic substances in a large amount —

shall be punishable by a fine of up to ten thousand monthly calculation indices, or community service for a period of sixty to two hundred and forty hours, or correctional labour for a period of up to two years, or imprisonment for a period of up to three years.

2. Illegal manufacture, processing, dispatch or sale of narcotic drugs or psychotropic substances, as well as the acts provided for in Part One of this Article, committed with the intent to sell narcotic drugs or psychotropic substances or involving narcotic drugs or psychotropic substances in an especially large amount, —

shall be punishable by imprisonment for a term of three to seven years, with or without confiscation of property.

3. Illegal acquisition, transportation or possession for the purpose of sale, manufacture, processing, dispatch or sale of narcotic drugs or psychotropic substances, committed:

a) by a group of persons acting upon prior agreement;

b) repeatedly;

c) in respect of narcotic drugs or psychotropic substances in a large amount, —

shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.

4. Illegal acquisition, transportation or possession for the purpose of sale, manufacture, processing, dispatch or sale of narcotic drugs or psychotropic substances, committed:

a) by an organized group or a criminal community (criminal organization);

b) in respect of narcotic drugs or psychotropic substances in an especially large amount, —

shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.

Note.

1. A person who voluntarily surrenders narcotic drugs or psychotropic substances, or voluntarily applies to a medical institution for medical assistance in connection with the consumption of narcotic drugs for non-medical purposes, and actively assists in the disclosure or prevention of crimes related to the illegal trafficking of narcotic drugs or psychotropic substances, the exposure of persons who committed such crimes, or the discovery of property obtained through criminal means, shall be released from criminal liability under this Article.

2. The large and especially large amounts of narcotic drugs and psychotropic substances under this Article shall be determined in accordance with the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances and Precursors into Small, Large and Especially Large Amounts Detected in Illegal Trafficking, approved by the Law of the Republic of Kazakhstan “On Narcotic Drugs, Psychotropic Substances, Precursors and Measures to Counter Their Illegal Trafficking and Abuse”.

The public danger of crimes related to the illegal trafficking of narcotic drugs is expressed primarily in the fact that their commission results in deterioration of the population's gene pool. Therefore, it is no coincidence that the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan” dated June 26, 1998, recognizes the illegal trafficking of narcotic drugs as a threat to the national security of the Republic of Kazakhstan, contributing to a reduction in the level of protection of the rights and freedoms of individuals and citizens.

The object of this crime is public health.

The subject matter of the crime under consideration consists of narcotic drugs or psychotropic substances.

According to Article 1 of the Law of the Republic of Kazakhstan “On Narcotic Drugs, Psychotropic Substances, Precursors and Measures to Counter Their Illegal Trafficking and Abuse” dated July 10, 1998, narcotic drugs are substances of synthetic or natural origin included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in accordance with the legislation of the Republic of Kazakhstan, the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961.

Psychotropic substances are substances of synthetic or natural origin included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in accordance with the legislation of the Republic of Kazakhstan, including the Convention on Psychotropic Substances of 1971.

These substances possess four characteristics.

The medical characteristic (criterion) is defined by the ability of narcotic drugs to affect the central nervous system and cause narcotic intoxication, and, in the case of systematic consumption, to cause psychological and physical dependence (drug addiction).

The legal characteristic consists of the mandatory inclusion of narcotic drugs in lists contained in international legal instruments or domestic regulatory documents.

As for the social characteristic, it consists of causing harm to public health, although this does not refer to the population as a whole, but rather to an indefinite group of persons drawn into the sphere of illegal drug consumption.

The physical characteristic of narcotic drugs should be understood as the description of their composition, properties, effects, and so on.

When defining the concept of narcotic drugs, two characteristics (medical and legal) are fundamental, while the other two (social and physical) are additional.

Part 1 of Article 259 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for the illegal acquisition, transportation or possession, without the intent to sell, of narcotic drugs or psychotropic substances in a large amount.

The objective element of the crime is expressed in three types of actions: illegal acquisition, transportation and possession.

According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan “On the Application of Legislation in Cases Related to the Illegal Trafficking of Narcotic Drugs, Psychotropic, Potent and Toxic Substances” dated May 14, 1998, illegal acquisition means any actions as a result of which a person becomes the actual possessor of narcotic drugs or psychotropic substances.

Such actions include purchasing, receiving in exchange for other goods and items, obtaining on loan or as a gift, receiving in payment of a debt, appropriating found substances, receiving them as payment for services, collecting wild-growing plants, cannabis, poppy or parts thereof, as well as collecting the remains of unguarded crops of narcotic-containing plants after the completion of their harvesting.

In this regard, it does not matter whether narcotic drugs or psychotropic substances pass into permanent or temporary possession.

Theft by any means or extortion does not constitute the objective element of this crime (such acts are classified under Article 260 of the Criminal Code of the Republic of Kazakhstan).

Illegal transportation of narcotic drugs or psychotropic substances should be understood as any intentional actions involving their physical movement without the appropriate authorization, using a means of transport.

Transportation may be carried out both by the person in whose illegal possession the narcotic drugs or psychotropic substances are located and by other persons acting on that person's instructions.

A person who instructs others to carry out the illegal transportation of the specified substances shall be liable for organizing the transportation, and where transportation is carried out through persons unaware of the nature of the cargo, such person shall be liable as the direct perpetrator (paragraph 7 of the Resolution).

Possession means any holding or actual possession of narcotic drugs or psychotropic substances.

These substances may be possessed secretly or openly, temporarily or permanently, on one's person or in residential premises, at night or during the day, free of charge or for a certain fee. These circumstances do not affect the legal classification of the act.

Possession may be considered criminal regardless of who is the actual owner of the narcotic drugs or psychotropic substances.

By its structure, the composition of the crime is formal, meaning that the crime is considered completed at the moment the socially dangerous act is committed, regardless of whether any harmful consequences subsequently occur.

The large amount is characterized by the substantial quantity, weight and volume of the substances concerned, as well as their properties and degree of impact on the human body.

When illegal actions are committed involving different types of narcotic drugs or psychotropic substances, their amount must be determined taking into account both the total quantity and their combined effectiveness.

The amounts of narcotic drugs and psychotropic substances are established in the Consolidated Table on the Classification of Narcotic Drugs and Psychotropic Substances into Small, Large and Especially Large Amounts Detected in Illegal Trafficking or Possession, which constitutes a separate Appendix No. 2 to the Law of the Republic of Kazakhstan “On Narcotic Drugs, Psychotropic Substances, Precursors and Measures to Counter Their Illegal Trafficking and Abuse” dated July 10, 1998 (as subsequently amended and supplemented).

This Appendix contains the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan.

An expert assessment is required in order to classify the amount of narcotic drugs or psychotropic substances as small, large or especially large.

The subject of the crime is a physically sane individual who has reached the age of 16.

If a person was under the influence of narcotic intoxication or in a state of abstinence (drug withdrawal) at the time of committing the socially dangerous act, such person shall not be exempt from criminal liability (Article 18 of the Criminal Code of the Republic of Kazakhstan).

Furthermore, the court may consider this circumstance as an aggravating circumstance in relation to criminal liability and punishment, or may disregard it depending on the nature of the crime (subparagraph “m” of Part 1 of Article 54 of the Criminal Code of the Republic of Kazakhstan).

If, at the time of committing the crime, a person, due to a mental disorder resulting from the abuse of narcotic drugs or psychotropic substances, was unable to fully understand the actual nature and social danger of their actions or to control them, such person shall be recognized as having diminished responsibility under Article 17 of the Criminal Code of the Republic of Kazakhstan and shall not be exempt from criminal liability.

This circumstance may be taken into account by the court as a mitigating circumstance when imposing punishment and may serve as grounds for the application of compulsory medical measures.

The subjective element is characterized by direct intent, meaning that the person was aware of the social danger of their illegal actions involving the acquisition or possession of narcotic drugs or psychotropic substances, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.

The motive of the crime does not affect its legal classification; however, the absence of the intent to sell narcotic drugs or psychotropic substances is of fundamental importance.

This may be evidenced by the person's own consumption of the substances, as well as by the quantity and volume of the narcotic drugs acquired and possessed, and so on.

Part 2 of Article 259 of the Criminal Code of the Republic of Kazakhstan provides for criminal liability for the illegal acquisition, transportation or possession for the purpose of sale (i.e. the acts provided for in Part 1 of this Article), manufacture, processing, dispatch or sale of narcotic drugs or psychotropic substances, or where narcotic drugs or psychotropic substances are involved in especially large amounts.

At the same time, acquisition, transportation and possession have been examined in the analysis of Part 1 of Article 259 of the Criminal Code.

Illegal manufacture should be understood as any intentional actions resulting in the production of narcotic drugs or psychotropic substances, or the conversion of one narcotic drug or psychotropic substance into another substance respectively included in the List.

Changing the form of one and the same type of narcotic drug or psychotropic substance (grinding, pressing into tablets, pills, slabs, pastes, etc.) does not constitute manufacture (paragraph 4 of the Resolution).

Manufacture may take place in domestic conditions (by artisanal methods), where simple operations involving the production of the specified substances may be carried out (drying, cutting, preparing decoctions from narcotic-containing plants, and so on).

It may also take place in institutions or enterprises outside the accounting system for manufactured products (by industrial methods or under laboratory conditions). In such cases, there are grounds for additional classification of the acts under the cumulative elements of Article 259 of the Criminal Code of the Republic of Kazakhstan together with official misconduct or theft.

The physical state of the initial and resulting product (solutions, powdery mass, granules, compressed slabs, mixtures with neutral substances, gaseous state, and the like), as well as its concentration and quantity, are relevant for establishing the circumstances of the act and assessing the degree of its social danger, but not for its legal classification.

Manufacture is criminal regardless of whether the person manufactures or obtains narcotic substances for personal consumption or for the purpose of sale.

The crime shall be considered completed at the moment when at least a portion of the finished substance has been obtained in such a concentration that its consumption can produce the corresponding effect on the human body, induce a state of euphoria and relieve withdrawal syndrome, and, when taken repeatedly, contribute to the development of drug addiction, or from the moment one type of narcotic drug is converted into another.

Illegal processing means the alteration or refining (purification from foreign impurities), without the appropriate authorization, of one and the same type of narcotic drug or psychotropic substance for the purpose of increasing its concentration.

Drying, grinding, separating certain parts and other modifications of one and the same type of narcotic-containing plant do not constitute illegal processing, except in cases where another narcotic drug is obtained from it (paragraph 6 of the Resolution).

Illegal dispatch of narcotic drugs or psychotropic substances means sending them by any means of communication, through a courier, as well as by using animals or birds (paragraph 7 of the Resolution).

The crime is considered completed when the person receives notification of dispatch, if this is included in the services provided by the postal service; otherwise, it is completed from the moment of dispatch, for example, from the moment an envelope containing narcotic drugs is dropped into a mailbox.

For the purposes of legal classification, it does not matter whether the addressee has received the narcotic drugs sent to them.

If the crime was not completed for reasons beyond the control of the perpetrator (for example, if the person was detained while completing a receipt or at the moment of packing baggage for dispatch, and so on), their actions should be classified as an attempt to illegally dispatch narcotic drugs or psychotropic substances.

The sale of narcotic drugs or psychotropic substances should be understood as any illegal method of their distribution or transfer (sale, gifting, exchange, transfer in payment of a debt, lending, administration of a narcotic drug to another person by injection, etc.) (paragraph 9 of the Resolution).

If a narcotic drug is administered by injection to its owner at their request or with their consent, this does not constitute the offence of sale.

At the same time, it should be noted that in certain cases, where a narcotic drug is administered by injection to other persons, the actions of the perpetrators are classified cumulatively with the offence of inducing another person to consume narcotic drugs, if they were the ones who encouraged that person to take the substance.

The actions of persons involving the sale of narcotic drugs in drug dens organized by them or in premises provided for this purpose should also be classified cumulatively.

If adults sell narcotic drugs to minors, thereby involving them in criminal activity (the acquisition of narcotic drugs), they shall be held liable under the cumulative provisions of Part 1 of Article 131, Part 1 of Article 132 and Article 259 of the Criminal Code of the Republic of Kazakhstan, and, where facts of knowingly inducing minors to consume narcotic drugs are established, under subparagraph “c” of Part 2 of Article 261 of the Criminal Code of the Republic of Kazakhstan.

If the sale of narcotic drugs through injection results in HIV/AIDS infection, serious bodily harm or death, the act must be classified cumulatively with crimes against the person.

If a person fraudulently sells some substance under the guise of narcotic drugs, for example, mumiyo, for the purpose of obtaining money or property belonging to citizens, their actions must be classified as fraud.

The actions of the person who received this substance must be classified as an attempted illegal acquisition, since the crime was not completed for reasons beyond that person's control.

The funds obtained in this manner shall be transferred to state revenue.

Sale may be carried out both by the person who manufactured the narcotic drugs and by persons who had no involvement whatsoever in their manufacture.

The motive guiding the seller (the presence or absence of a profit motive; the desire to make a profit or, conversely, to get rid of the substances, to stop consuming them, and so on) is irrelevant for the classification of their actions as the sale of narcotic drugs, although it is significant when assessing the degree of social danger.

The sale is completed at the moment when narcotic drugs or psychotropic substances pass from the actual possession of one person into the possession of another.

It should be noted that the moment of transfer of narcotic drugs may be prolonged, for example, where they are sold through an intermediary or using hiding places.

At the same time, it is possible that, at the moment the sale is completed, the person to whom the narcotic drugs were sold has not yet received them.

Illegal transportation and dispatch of narcotic drugs or psychotropic substances across the customs or state border shall be classified under Article 250 of the Criminal Code of the Republic of Kazakhstan as smuggling of items withdrawn from circulation or items whose circulation is restricted.

The subjective element of the illegal manufacture, acquisition, possession, processing, transportation, dispatch or sale of narcotic drugs or psychotropic substances is characterized by direct intent.

Acquisition, transportation and possession of narcotic drugs have a mandatory element — the intent to sell.

The existence of such intent may be evidenced by an agreement with consumers, a significant quantity of narcotic drugs being possessed, acquisition by a person who does not personally consume narcotic drugs, and similar circumstances.

It does not matter whether the person intended to sell the narcotic drugs within the territory of Kazakhstan or in other states.

The manufacture, processing, dispatch or sale of narcotic drugs or psychotropic substances entails criminal liability even if these actions were carried out for personal consumption.

Attention should be drawn to the fact that, in the cases of manufacture, processing, dispatch and sale, Part 2 of the provision under consideration contains no reference to the amounts of narcotic drugs or psychotropic substances.

Accordingly, criminal liability arises where a person commits any of the above-mentioned active actions involving even small amounts of such substances, regardless of whether the intent to sell was present or absent.

Criminal liability under Part 2 of Article 259 of the Criminal Code also arises for the acquisition, transportation or possession of narcotic drugs or psychotropic substances without the intent to sell, where they are present in especially large amounts.

Part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan contains three qualifying circumstances for the acts provided for in Part 2 of Article 259 of the Criminal Code.

The legislator classifies the following circumstances as qualifying factors for the commission of a socially dangerous offence:

a) by a group of persons acting upon prior agreement;

b) repeatedly;

c) in respect of narcotic drugs or psychotropic substances in a large amount.

A group of persons acting upon prior agreement must consist of two or more persons, and all members of the group must be co-perpetrators.

Since the dispositions of Parts 2 and 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan are alternative in nature, a member of the group may perform all the listed types of illegal actions, several of them, or only one (for example, only transporting or only selling narcotic drugs).

Co-perpetration may be simultaneous, where all members of the group act at the same time and in the same place (manufacturing, transporting or selling narcotic drugs).

More often, however, co-perpetration is sequential, where each accomplice performs a separate stage of the objective element: one manufactures the narcotic drugs, another transports them, a third possesses them, and a fourth sells them.

Repetition (Article 11 of the Criminal Code of the Republic of Kazakhstan) must be distinguished from a continuing crime, that is, a crime covered by a single intent.

Since the disposition of Part 2 of Article 259 of the Criminal Code of the Republic of Kazakhstan is alternative in nature, the commission of any one of the acts listed therein already constitutes a completed crime.

At the same time, the successive commission of all or several of the listed acts in relation to the same batch of narcotic drugs does not constitute repetition.

Repeated acts should be understood as the acquisition, possession, manufacture, processing, transportation, dispatch or sale of several batches of narcotic drugs, or the manufacture of one batch and transportation of another, and so on.

Attention should be drawn to the fact that Part 3 of Article 259 of the Criminal Code provides only for homogeneous repetition, that is, the repeated commission of two or more acts provided for exclusively in Part 2 of Article 259 of the Criminal Code.

The commission of other acts involving the illegal trafficking of narcotic drugs does not constitute repetition.

Thus, the acquisition or possession of one batch of narcotic drugs without the intent to sell and another batch with the intent to sell cannot be classified as repeated offences.

In this case, the actions constitute an actual (or ideal) concurrence of crimes provided for in Parts 1 and 2 of Article 259 of the Criminal Code of the Republic of Kazakhstan.

Previous theft or extortion of narcotic drugs, illegal cultivation of plants prohibited for cultivation, or inducing another person to consume narcotic drugs do not constitute repetition.

Subparagraph “c” of Part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan provides for criminal liability for the acts specified in Part 2 of Article 259 of the Criminal Code where they involve narcotic drugs or psychotropic substances in a large amount, the concept of which is explained in the commentary to Part 1 of Article 259 of the Criminal Code of the Republic of Kazakhstan.

Part 4 of Article 259 of the Criminal Code provides for liability for the illegal acquisition, transportation or possession of narcotic drugs or psychotropic substances for the purpose of sale, manufacture, processing, dispatch or sale, where such acts are committed by an organized group or a criminal community (criminal organization), or involve narcotic drugs or psychotropic substances in an especially large amount.

Release from criminal liability on the grounds specified in the Note to Article 259 of the Criminal Code of the Republic of Kazakhstan is possible only where two conditions are present simultaneously: the voluntary surrender by the person of narcotic drugs or psychotropic substances, or the person's voluntary application to a medical institution for medical assistance in connection with the consumption of narcotic drugs or psychotropic substances for non-medical purposes, and their active assistance in the disclosure of crimes related to the illegal trafficking of narcotic drugs or psychotropic substances (paragraph 18 of the Resolution).

Voluntary surrender of narcotic drugs or psychotropic substances means the transfer by a person of these substances to representatives of the authorities, despite the person's having a genuine opportunity to dispose of them otherwise (paragraph 18 of the Resolution).

When establishing this characteristic, attention should be paid to two circumstances.

First, there must be an actual surrender of narcotic drugs to the relevant persons, rather than merely an intention expressed by the person possessing the narcotic drugs, even if such intention is expressed in writing.

Second, the surrender of these substances must be genuinely voluntary and not forced (under the threat of exposure by law enforcement officers).

Voluntary application to any medical institution for medical assistance in connection with the consumption of narcotic drugs for non-medical purposes means that a person who consumes narcotic drugs voluntarily applies to a medical institution for the purpose of receiving treatment for drug addiction.

In this case, the person is not held criminally liable not only for consuming narcotic drugs, but also for the illegal actions involving narcotic drugs that they committed before applying to the medical institution.

Active assistance in the disclosure or prevention of crimes related to the illegal trafficking of narcotic drugs or psychotropic substances implies the personal and voluntary participation of the subject in activities conducted by the preliminary investigation or inquiry authorities aimed at disclosing or preventing the relevant crime, establishing the actual circumstances of the case, identifying persons involved in the commission of the act, determining their whereabouts and detaining them, locating narcotic drugs or psychotropic substances, and so on (paragraph 18 of the Resolution).

Active assistance in discovering property obtained through criminal means implies providing information not only about the places where narcotic drugs are stored, manufactured or sold, but also about other property obtained through criminal means as a result of the illegal trafficking of narcotic drugs (foreign currency, jewellery, accounts in foreign banks, and the like).

Active repentance does not release a person from criminal liability for committing acts also related to the illegal trafficking of narcotic drugs or psychotropic substances but provided for under other Articles of this Chapter of the Criminal Code of the Republic of Kazakhstan — theft, extortion, inducing another person to consume narcotic drugs, and so on.

It should also be noted that other Articles of this Chapter do not provide at all for the possibility of releasing a person from criminal liability on the grounds of active repentance.

Commentary of 2007 to the Criminal Code of the Republic of Kazakhstan, by I.Sh. Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Information on the legal act:

• Date of amendment of the act: 02.08.2007
• Date of adoption of the act: 02.08.2007
• Place of adoption: NONE
• Authority that adopted the act: 180000000000
• Territorial scope of application: 100000000000
• Registration number of the regulatory legal act assigned by the rule-making authority: 167
• Status of the act: new
• Sphere of legal relations: 028000000000
• Form of the act: COMMENTARY
• Legal force: 1900
• Language of the act: Russian

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