Commentary on Article 296 of the Criminal Code of the Republic of Kazakhstan. Illegal Circulation of Narcotic Drugs, Psychotropic Substances and Their Analogues Without the Purpose of Sale
1. Consumption of narcotic drugs, psychotropic substances or their analogues for non-medical purposes in public places —
shall be punishable by a fine of up to eighty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.
2. Illegal manufacture, processing, acquisition, storage or transportation of narcotic drugs, psychotropic substances or their analogues without the purpose of sale —
shall be punishable by a fine of up to one hundred and sixty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.
3. Illegal manufacture, processing, acquisition, storage or transportation of narcotic drugs, psychotropic substances or their analogues on a large scale without the purpose of sale —
shall be punishable by a fine of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.
4. Illegal manufacture, processing, acquisition, storage or transportation of narcotic drugs, psychotropic substances or their analogues on an especially large scale without the purpose of sale —
shall be punishable by imprisonment for a period of three to seven years.
Notes.
The quantities of narcotic drugs and psychotropic substances shall be determined by the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Identified in Illicit Trafficking into Small, Large and Especially Large Quantities, approved by the Government of the Republic of Kazakhstan. Small, large and especially large quantities of analogues of narcotic drugs and psychotropic substances correspond to the small, large and especially large quantities of the narcotic drugs and psychotropic substances of which they are analogues.
A person who voluntarily surrenders narcotic drugs, psychotropic substances, their analogues and precursors acquired for personal consumption, or who voluntarily applies to a medical institution for medical assistance in connection with the non-medical consumption of narcotic drugs, psychotropic substances or their analogues, or who actively assists in the detection or suppression of crimes related to the illicit circulation of narcotic drugs, psychotropic substances, their analogues and precursors, in exposing the persons who committed them, or in identifying property obtained through criminal activity, shall be exempt from criminal liability under this Article.
The criminal-law response to the criminal offence under consideration is based on a number of international conventions: the Single Convention on Narcotic Drugs of 1961, the Vienna Convention on Psychotropic Substances of 1971 (ratified by the Law of the Republic of Kazakhstan dated 1 July 1998), and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (ratified by the Law of the Republic of Kazakhstan dated 29 June 1998).
The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances lists intentional acts for which criminal liability must be provided for in the national legislation of the participating States. In accordance with subparagraph (i) of subparagraph (a) of paragraph 1 of Article 3 of the Convention, such acts include, in particular, “...the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms, brokerage, dispatch, transit dispatch, transportation, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, that Convention as amended, or the 1971 Convention (subparagraph (i) of subparagraph (a)); the cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and that Convention as amended (subparagraph (ii) of subparagraph (a)); the possession or acquisition of any narcotic drug or psychotropic substance for the purpose of carrying out any of the activities listed in subparagraph (i) (subparagraph (iii) of subparagraph (a)); the organization, management or financing of any of the offences referred to in subparagraphs (i), (ii), (iii) or (iv) (subparagraph (v) of subparagraph (a)). By ratifying the Single Convention on Narcotic Drugs of 1961 (including the amendments introduced by the 1972 Protocol) and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the Republic of Kazakhstan undertook to adopt special measures to control the circulation of these substances within its territory, including the introduction of legislative and administrative measures that may be necessary to fulfil its obligations. In this regard, the legislator established criminal liability under Article 296 of the Criminal Code of the Republic of Kazakhstan for the illegal circulation of narcotic drugs, psychotropic substances and their analogues without the purpose of sale.
It should be noted that human health, considered in itself, is not only the principal object of the criminal offences under consideration, but also the principal object of offences against health (Chapter 1, Articles 106–119 of the Criminal Code). In both cases, the concept of health is understood in the same sense.
In medical science and legal doctrine, health is understood as the physiological condition of an organism, which is a necessary condition for life.
Subparagraph 73) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan on Public Health and the Healthcare System defines health not merely as the absence of diseases and physical defects, but as a state of complete physical, spiritual (mental) and social well-being. However, despite the fact that both the provisions of Chapter 1 of the Criminal Code and the relevant provisions of Chapter 11 of the Criminal Code are aimed at protecting health, the immediate objects of these criminal offences differ from one another due to the specific nature of the interests and relations protected by criminal law. In criminal offences against health provided for in Chapter 1 of the Criminal Code, the object is the health of a particular individual or certain individuals. In criminal offences against public health provided for in Chapter 11 of the Criminal Code, the object is the health of a broad range of potential victims, the risk of harm to whom is largely determined by the specific subject matter of the criminal offence (for example, the illicit circulation of narcotic drugs, psychotropic substances or their analogues).
It can be confidently stated that the vast majority of environmental offences encroach upon public health. However, the legislator has allocated the provisions establishing liability for them to a separate chapter, which is justified in view of the specific nature of these criminal offences and, in this way, has (formally) excluded environmental offences from the category of criminal offences against public health.
The public danger of criminal offences related to the illicit circulation of narcotic drugs, psychotropic substances and their analogues (Parts 1, 2 and 3 — criminal misdemeanours; Part 4 — a crime) lies primarily in the deterioration of the gene pool of the population resulting from their commission.
Among the 20 principal threats to national security provided for in Article 6 of the Law of the Republic of Kazakhstan dated 6 January 2012 “On National Security”, the circulation of narcotic drugs is placed first as a factor contributing to a decrease in the level of protection of national interests.
The object of the criminal offence under consideration is public health. It is protected through a range of political, economic, legal, medical and other measures.
The subject matter of this criminal offence is narcotic drugs, psychotropic substances and their analogues.
In accordance with the Law of the Republic of Kazakhstan dated 10 July 1998 “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counter Their Illicit Circulation and Abuse”, narcotic drugs are understood as 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 and the amendments introduced by the 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 and its international treaties, including the Convention on Psychotropic Substances of 1971.
The above-mentioned subject matter of the criminal offence under analysis has four characteristics.
The medical characteristic (criterion) is expressed in the ability of narcotic drugs and psychotropic substances to affect the central nervous system and cause drug intoxication and, when consumed systematically, to lead to psychological and physical dependence (drug addiction).
The legal characteristic means that narcotic drugs and psychotropic substances must necessarily be included in lists contained in international legal instruments or domestic regulatory documents.
The social characteristic consists in causing harm not to the health of the population as a whole, but to the health of an indefinite group of persons involved in the illicit consumption of narcotic drugs and psychotropic substances.
The physical characteristic of narcotic drugs should be understood as a description of their composition, properties, effects and other characteristics.
When defining the concept of narcotic drugs, two characteristics (medical and legal) are fundamental, while the other two (social and physical) are considered additional.
A new feature of the criminal offence under consideration is the recognition of analogues of narcotic drugs and psychotropic substances as its subject matter. Under the previous criminal legislation, acts involving analogues of narcotic drugs and psychotropic substances did not constitute a criminal offence.
Analogues of narcotic drugs and psychotropic substances should be understood as chemical substances not included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan, whose structural formulas are formed by replacing one or more hydrogen atoms, halogens and/or hydroxyl groups in the structural formulas of narcotic drugs and psychotropic substances with their substitutes.
When bringing a person to criminal liability, the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan and the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Identified in Illicit Trafficking into Small, Large and Especially Large Quantities, approved by Resolution No. 470 of the Government of the Republic of Kazakhstan dated 3 July 2019, shall apply.
In this regard, it should be borne in mind that if, under the newly approved List and Consolidated Table, liability or punishment is mitigated, or the position of the person who committed the criminal offence is otherwise improved, these provisions must have retroactive effect.
In addition to the above-mentioned regulatory legal acts, when considering cases in this category, judicial and investigative authorities are also guided by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 14 May 1998 “On the Application of Legislation in Cases Related to the Illicit Circulation of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors”.
In particular, paragraph 1 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “It should be explained that criminal liability is established only for the illicit circulation of narcotic drugs, psychotropic substances and their analogues included in the ‘List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan’, approved by Resolution No. 470 of the Government of the Republic of Kazakhstan dated 3 July 2019.
When determining the quantities of narcotic drugs, psychotropic substances and their analogues, it is necessary to be guided by the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Identified in Illicit Trafficking into Small, Large and Especially Large Quantities, approved by a Government resolution.
The illicit circulation of narcotic drugs, psychotropic substances, their analogues and toxic substances entailing criminal liability shall be understood as their consumption for non-medical purposes in public places, manufacture, processing, acquisition, storage, transportation, dispatch and sale, carried out in violation of the legislation of the Republic of Kazakhstan.”
In accordance with the law, the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan means the list of narcotic drugs, psychotropic substances and precursors subject to control in the Republic of Kazakhstan, numbered and combined into the relevant tables and list on the basis of international conventions.
The List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan consists of four tables and a list.
Table I includes a list of narcotic drugs and psychotropic substances prohibited for medical use.
Table II includes a list of narcotic drugs and psychotropic substances used for medical purposes and subject to strict control.
Table III includes a list of narcotic drugs and psychotropic substances used for medical purposes and subject to control.
Table IV includes a list of controlled precursors (chemical and plant-based substances frequently used in the illicit manufacture of narcotic drugs and psychotropic substances).
It should also be noted that the above-mentioned Resolution of the Government of the Republic of Kazakhstan dated 3 July 2019 separately provides a list of medicinal products containing narcotic drugs, psychotropic substances and precursors that are subject to control in the Republic of Kazakhstan and permitted for use in veterinary medicine.
Part 1 of Article 296 of the Criminal Code establishes criminal liability for the consumption of narcotic drugs, psychotropic substances and their analogues for non-medical purposes in public places. It should be noted that previously administrative liability for the commission of the above-mentioned acts was provided for in Article 336-2 of the Code of Administrative Offences. However, taking into account the high degree of public danger of these acts, the legislator transferred them from the category of administrative offences to the category of criminal offences.
The objective aspect of the crime is expressed in the consumption of narcotic drugs, psychotropic substances or their analogues for non-medical purposes in public places.
Consumption of narcotic drugs, psychotropic substances or their analogues should be understood as actions aimed at their independent use or use with the assistance of other persons by any method, in particular, ingestion through the oral or nasal cavity, through the respiratory tract, intravenous, intramuscular or subcutaneous injection, etc.
The act is considered completed from the moment consumption of narcotic drugs, psychotropic substances or their analogues begins. In this regard, a mandatory feature of the objective aspect is consumption for non-medical purposes, that is, independent consumption without a doctor's prescription.
Furthermore, for the signs of a criminal offence to be present, the above-mentioned acts must be committed in public places. The current legislation does not contain an exhaustive list of places classified as public places. Both the provisions of the Criminal Code of the Republic of Kazakhstan of 1997 and those of the Criminal Code of the Republic of Kazakhstan of 2014, in the rules establishing criminal liability for hooliganism, indicate that intentional damage to property in transport or other public places constitutes an element of this act. Thus, the legislator also classifies transport as a public place.
Part 1 of Article 441 of the Code of Administrative Offences establishes administrative liability for violating the prohibition on smoking in certain public places.
Paragraph 5 of Article 110 of the Code “On Public Health and the Healthcare System” lists the places where the consumption of tobacco products, including products containing heated tobacco, tobacco for hookahs, hookah mixtures, tobacco heating systems, electronic consumption systems and liquids, is prohibited:
in the premises and on the territory of educational organisations, as well as organisations intended for the recreation of minors;
in the premises of healthcare organisations;
in public catering establishments;
at cultural facilities, museums, libraries and lecture halls, cinemas, theatres, circuses, concert, viewing and exhibition halls, sports organisations and physical culture and health-improvement organisations, sports arenas and other facilities intended for mass recreation;
in nightclubs and discotheques;
on local and long-distance trains, aircraft, sea and river vessels, as well as in the passenger compartments of urban, suburban and intercity public motor transport, the metro, public transport carrying out regular and irregular passenger and baggage transportation by road, and taxis;
in the buildings of airports, railway, bus and water stations, and at covered public transport stops;
in government bodies and organisations;
in premises that constitute workplaces and work areas;
in the entrances of residential buildings;
on the premises and territory of petrol filling stations;
on children's playgrounds;
in underground pedestrian crossings;
in motor vehicles when minors are present.
The provisions of subparagraphs 3) and 7) of paragraph 5 of Article 110 of the Code “On Public Health and the Healthcare System” shall not apply where specially equipped places for the consumption of tobacco products, including products containing heated tobacco, tobacco heating systems, electronic consumption systems and liquids intended for them, have been designated (paragraph 6 of Article 110 of the Code “On Public Health and the Healthcare System”).
In addition to the above-mentioned places, public places also include streets, courtyards, parks, public gardens, beaches, etc.
There is no uniform opinion on this issue in legal literature. We believe that it is impossible to list all places that may be classified as public places. However, it is necessary to identify the principal characteristics that make it possible to classify a place as a public place:
firstly, it may be any place — a street, courtyard, children's playground, park, public garden, beach, entrance hall, lift in a residential building, all types of public transport, etc.;
secondly, other persons are present or may potentially be present there at any time and may involuntarily witness unlawful acts.
Where the specified characteristics are present, the place where the criminal offence under consideration was committed may be recognised as a public place.
The composition of the criminal offence under analysis is formal in its structure, meaning that, for it to be recognised as completed, it is sufficient for the above-mentioned acts to be committed in public places, regardless of whether any consequences occur.
The subjective aspect is characterised exclusively by direct intent, meaning that the person understands the public danger of their unlawful actions involving the consumption of narcotic drugs, psychotropic substances or their analogues for non-medical purposes in public places and desires to commit these acts.
The motive and purpose of the criminal offence under consideration do not affect its qualification.
The subject is a sane individual who has reached the age of sixteen. If a person was intoxicated at the time of committing the criminal offence as a result of consuming alcohol, narcotic drugs, psychotropic substances or other intoxicating substances, they shall not be exempt from criminal liability (Article 18 of the Criminal Code). Furthermore, the court may take this circumstance into account as an aggravating circumstance when determining criminal liability and punishment, or may disregard it depending on the nature of the crime (subparagraph 12) of paragraph 1 of Article 54 of the Criminal Code).
If, at the time of committing a criminal offence, a person was unable to fully understand the actual nature and public danger of their actions or control them due to a mental disorder caused by the abuse of narcotic drugs or psychotropic substances, they shall be recognised as a person with diminished sanity in accordance with Article 17 of the Criminal Code 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 constitute grounds for the application of compulsory medical measures.
Part 2 of Article 296 of the Criminal Code provides for criminal liability for the illegal manufacture, processing, acquisition, storage or transportation of narcotic drugs, psychotropic substances or their analogues without the purpose of sale. It should be noted that previously administrative liability for committing the above-mentioned acts was provided for in Article 320 of the Code of Administrative Offences. However, as noted above, due to the increased public danger of these acts, the legislator now establishes criminal liability for their commission.
In accordance with subparagraph 9) of Article 1 of the Law of the Republic of Kazakhstan dated 10 July 1998 “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counter Their Illicit Circulation and Abuse”, illegal manufacture of narcotic drugs, psychotropic substances and precursors should be understood as all processes that make it possible to obtain narcotic drugs, psychotropic substances and precursors, except for production, as well as the conversion of narcotic drugs, psychotropic substances and precursors into other narcotic drugs, psychotropic substances and precursors.
In accordance with paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application of Legislation in Cases Related to the Illicit Circulation of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors”, illegal manufacture means any intentional actions as a result of which narcotic drugs, psychotropic substances, their analogues or precursors are obtained, or one narcotic drug, psychotropic substance, its analogue or precursor is converted into another substance included in the relevant List. A change in the form of one type of narcotic drug or psychotropic substance or their analogues (crushing, pressing into tablets, pills, slabs, pastes, etc.) does not constitute manufacture.
Manufacture may be carried out at home (by a homemade method), that is, in a place where relatively simple technological operations for manufacturing the above-mentioned substances are performed (drying, cutting, preparing decoctions from plants containing narcotic substances, etc.). Manufacture may also be carried out in institutions, organisations or enterprises outside the accounting records of the products produced (by industrial methods or under laboratory conditions). In such cases, alongside the criminal offence provided for in Article 296 of the Criminal Code, it is necessary to consider the possibility of additionally qualifying an official criminal offence or misappropriation under the rules governing the aggregate of criminal offences.
The physical state of the initial and resulting products (solutions, powder-like mass, granules, pressed slabs, mixtures with neutral substances, gaseous state and the like), as well as their concentration and quantity, are important for establishing the circumstances of the act and assessing its degree of public danger, but are not relevant to its qualification.
By its structure, this criminal offence is formal, meaning that it should be considered completed from the moment at least a portion of the finished substance is obtained in a concentration capable of producing an appropriate effect on consumption, inducing a state of euphoria and eliminating withdrawal syndrome, and, when consumed repeatedly, potentially contributing to the development of drug addiction, or from the moment one type of narcotic drug, psychotropic substance or their analogue is converted into another type.
Processing of narcotic drugs, psychotropic substances and precursors means actions resulting in refining (purification from foreign impurities), increasing the concentration of narcotic drugs, psychotropic substances and precursors in a preparation, as well as obtaining substances based on them that are not narcotic drugs, psychotropic substances or precursors (subparagraph 12) of Article 1 of the Law).
In accordance with paragraph 6 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, illegal processing of narcotic drugs, psychotropic substances or their analogues means reprocessing or refining, without the appropriate authorisation, for the purpose of increasing the concentration of one type of narcotic drug, psychotropic substance or their analogue. Drying, crushing, separating certain parts of a plant containing narcotic substances and otherwise modifying it shall not constitute illegal processing (except in cases where another narcotic drug is obtained as a result).
Illegal processing is considered completed from the moment actions aimed at processing narcotic drugs, psychotropic substances or their analogues begin.
In accordance with paragraph 2 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, illegal acquisition of narcotic drugs, psychotropic substances, their analogues, equipment and devices used for their manufacture or processing, as well as precursors, should be understood as purchasing, obtaining, exchanging for other goods and items, transferring in repayment of a debt, receiving as a loan or gift, appropriating a found item, collecting wild plants containing narcotic substances or collecting the remaining parts of such plants from unguarded cultivated areas after harvesting has been completed, etc.
Theft of narcotic drugs, psychotropic substances or their analogues by any means, or extortion thereof, does not constitute the objective aspect of acquisition. Such acts are qualified under Article 298 of the Criminal Code, which establishes criminal liability for theft or extortion of narcotic drugs, psychotropic substances or their analogues.
Receiving narcotic drugs, psychotropic substances or their analogues by a person for temporary storage does not constitute acquisition; that is, possession of a narcotic drug by a drug courier is not regarded as acquisition, storage and transportation.
If the perpetrator commits several acts specified in Part 2 of Article 296 of the Criminal Code in relation to the same narcotic drug, for example, illegally acquires, stores and transports the drug, there is no aggregate of criminal offences — all the acts committed are covered by Part 2 of Article 296 of the Criminal Code.
The discovery of a narcotic drug in a person's possession does not in itself mean that there are grounds for charging that person with illegally acquiring narcotic drugs. It is necessary to prove that the fact of illegal acquisition of the narcotic drug actually occurred. If there is no such evidence, the use of formulations such as “at an undetermined time”, “at an undetermined place”, “from an unidentified person ... acquired a narcotic drug” in procedural documents is impermissible.
Both theoretically and, especially, practically, the issue of qualifying the actions of a person who acquired and stored a narcotic drug for personal consumption and subsequently sold part of the narcotic drug in their possession is of considerable interest. In practice, the actions of such a perpetrator are usually qualified under the aggregate of criminal offences provided for in Part 2 of Article 296 and Part 1 of Article 297 of the Criminal Code. In my opinion, such qualification cannot be accepted, since it treats actions involving the same narcotic drug as having been committed both with and without the purpose of sale. In my view, in such cases, the perpetrator's actions involving the illegal acquisition and storage of a narcotic drug without the purpose of sale are absorbed by the more serious crime, namely attempted sale of that narcotic drug. Under such circumstances, there is no aggregate of criminal offences, since the acts committed are fully covered by qualification as an attempt to sell narcotic drugs under Part 3 of Article 24 and Article 297 of the Criminal Code, taking into account the qualifying characteristics.
If a person acquires and stores a narcotic drug for the purpose of sale, qualification under Article 296 of the Criminal Code is not required, since, from the moment the perpetrator acquires the narcotic drug, its subsequent storage and further sale are covered by a single intent aimed at obtaining profit. Therefore, the perpetrator's actions involving the acquisition, storage and subsequent sale of the narcotic drug are fully covered by Part 3 of Article 24 and Article 297 of the Criminal Code, depending on the presence of qualifying characteristics.
Illegal acquisition of narcotic drugs, psychotropic substances or their analogues constitutes a completed criminal offence from the moment they are transferred from one person to another.
Illegal storage should be understood as any intentional actions associated with the presence of narcotic drugs, psychotropic substances, their analogues, equipment and devices used for their manufacture or processing, as well as precursors, in the actual possession of the perpetrator without the appropriate authorisation, regardless of the place where they are stored (on the person, in a hiding place, premises, vehicle or elsewhere) and the duration of storage.
When deciding whether there was an intention to illegally store these substances for the purpose of sale, it is necessary to rely on the totality of evidence indicating that these substances or their analogues were actually being prepared for sale (for example, the discovery of large quantities of the above-mentioned substances or their analogues, which exclude personal consumption alone, their packaging into individual doses, the presence of tools or equipment intended for their manufacture or packaging, the establishment of the fact that the perpetrator does not consume drugs, etc.).
The above-mentioned substances or items may be stored either secretly or openly, free of charge or for a certain fee. These circumstances do not affect qualification. Illegal storage may be recognised as criminal regardless of who the actual owner of the narcotic drugs, psychotropic substances or their analogues is.
In the area of garages in the town of Zhem, Aktobe Region, citizen V. uprooted a plant-based substance, brought it home, dried and crushed it, and kept it for personal consumption. The court established that V. had illegally acquired the narcotic drug — marijuana — by uprooting the undried narcotic plant. Thereafter, he illegally stored this narcotic drug at home. Subsequently, by drying it, he illegally manufactured marijuana. During the court proceedings, it was clearly established that V. had not carried out any reprocessing or refining (purification from foreign impurities). Therefore, the court quite correctly excluded the element of “processing” from the charge entirely, since the perpetrator had not committed actions aimed at obtaining another narcotic drug by changing the quality of the raw material in question.
This example contains elements of illegal acquisition and storage of a narcotic drug, while the element of its processing was reasonably excluded.
The simultaneous illegal acquisition and storage of several types of narcotic drugs, where the quantity of each of them individually constitutes a large quantity, is qualified as a single criminal offence under Part 3 of Article 296 of the Criminal Code. In such cases, there is no aggregate of criminal offences, and, moreover, the quantities of different types of narcotic drugs are not subject to addition. Consequently, if a person stores several types of narcotic drugs, but none of them reaches a large quantity, the act must be qualified under Part 2 of the Article under consideration. The storage of different types of narcotic drugs may indicate that the person has the purpose of selling them. This position is also supported by the Supreme Court of the Republic of Kazakhstan. In particular, paragraph 4 of paragraph 11 of the Regulatory Resolution dated 14 May 1998 states: “Since the Consolidated Table separately establishes the quantity and type of each narcotic drug, their analogues or psychotropic substance, when qualifying the actions of a person apprehended with different narcotic drugs or psychotropic substances and their analogues, it is impermissible to add together the total weight of different narcotic drugs or psychotropic substances and their analogues.”
Paragraph 6 of paragraph 11 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “When qualifying the illicit circulation of narcotic drugs, psychotropic substances and their analogues, it is necessary to rely on the quantities established in the Consolidated Table. In this regard, the quantity of narcotic drugs, psychotropic substances and their analogues shall be determined separately for each type and shall not be added together. Where the Consolidated Table establishes types of narcotic drugs containing accompanying substances and fillers (for example, heroin including accompanying substances and fillers, codeine with salts, codeine in medicinal form, methadone with salts, morphine with salts, opium with neutral fillers (flour, sugar, starch, etc.), cocaine with salts including accompanying substances, MDMA, MBDD with salts, ephedrone with accompanying substances, etc.), it is necessary to rely on the weight of the narcotic drugs together with the fillers.”
When determining the quantity and weight of narcotic drugs and psychotropic substances and their analogues consisting of uprooted cannabis and opium poppy plants, parts that do not contain narcotic substances or their analogues (soil, rhizomes, etc.) must be excluded.
Courts should take into account that, where solutions containing narcotic substances (potent substances) are found on a person, criminal liability may arise only if an expert examination establishes that a large or especially large quantity of a narcotic drug or psychotropic substance, or its analogue, was used to obtain the identified quantity of the solution.
Illegal storage is considered completed from the moment narcotic drugs, psychotropic substances or their analogues begin to be in the actual possession of the perpetrator.
In accordance with subparagraph 14) of Article 1 of the Law cited above, transportation and dispatch of narcotic drugs, psychotropic substances and precursors means any actions aimed at moving narcotic drugs, psychotropic substances and precursors within the territory of the Republic of Kazakhstan.
Paragraph 2-1 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states that illegal transportation of narcotic drugs, psychotropic substances or their analogues means any actions aimed at moving them within the territory of the Republic of Kazakhstan in violation of the legislation of the Republic of Kazakhstan, regardless of the method of transportation and place of storage, including within the boundaries of a single settlement.
Illegal transportation of narcotic drugs, psychotropic substances and their analogues may be carried out by concealing them, including in specially equipped hiding places in vehicles, in baggage, clothing, as well as in the body cavities of a person or an animal, etc.
Transportation may be carried out either by the person who is in illegal possession of the narcotic drugs, psychotropic substances or their analogues, or by other persons acting on their instructions. A person who entrusts other persons with the transportation of the above-mentioned substances and items or their analogues shall be liable for organising the transportation; where transportation is carried out through persons whose actions are not subject to criminal liability under criminal law (for example, persons who are legally insane, persons who have not reached the age of criminal responsibility, or persons who are unaware of the nature of the cargo), that person shall be liable as the perpetrator of the criminal offence.
The question of whether a person's actions contain the elements of the criminal offence of illegal transportation without the purpose of sale, and the issue of distinguishing this offence from illegal storage of a narcotic drug, psychotropic substance or their analogues without the purpose of sale, must be resolved in each specific case by taking into account the direction of the person's intent, the actual circumstances of the transportation, the number, quantity and volume of the narcotic drugs, psychotropic substances or their analogues, their location, as well as other circumstances of the case. For example, if a person who consumes drugs goes on holiday for a week and takes narcotic drugs with them for consumption during those days, their actions should be qualified as illegal acquisition and storage of narcotic drugs. In this case, there are no elements of transportation.
Transportation of narcotic drugs, psychotropic substances or their analogues should be considered a completed criminal offence from the moment their transportation begins.
Illegal transportation of narcotic drugs, psychotropic substances or their analogues across the customs border of the Customs Union or the State Border of the Republic of Kazakhstan is qualified under Article 286 of the Criminal Code as smuggling of items withdrawn from circulation or items whose circulation is restricted.
A mandatory element of Part 2 of Article 296 of the Criminal Code is the absence of the purpose of selling narcotic drugs, psychotropic substances or their analogues, that is, they are manufactured, processed, acquired, stored and transported for personal consumption rather than for transfer to another person. In addition, for qualification under Part 2 of Article 296 of the Criminal Code, their quantity must not be large.
Part 3 of Article 296 of the Criminal Code provides for criminal liability for the illegal manufacture, processing, acquisition, storage or transportation of narcotic drugs, psychotropic substances or their analogues on a large scale without the purpose of sale.
The distinctive feature of Part 3 of Article 296 of the Criminal Code is the presence of a qualifying characteristic, namely, a large quantity of narcotic drugs, psychotropic substances or their analogues.
Part 4 of Article 296 of the Criminal Code establishes an especially qualifying characteristic in the form of an especially large quantity of narcotic drugs, psychotropic substances or their analogues.
The subjective aspect of the criminal offences provided for in Parts 2, 3 and 4 of the Article under consideration is characterised by direct intent. The person understands that they are illegally manufacturing, processing, acquiring, storing or transporting narcotic drugs, psychotropic substances or their analogues without the purpose of sale and desires to do so.
According to the Note to Article 296 of the Criminal Code, the quantities of narcotic drugs and psychotropic substances are determined by the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Identified in Illicit Trafficking into Small, Large and Especially Large Quantities, approved by the Government of the Republic of Kazakhstan.
Small, large and especially large quantities of analogues of narcotic drugs and psychotropic substances correspond to the small, large and especially large quantities of the narcotic drugs and psychotropic substances of which they are analogues.
For example, according to the Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors Identified in Illicit Trafficking into Small, Large and Especially Large Quantities, approved by the Resolution of the Government of the Republic of Kazakhstan dated 3 July 2019, as amended by Resolution No. 975 of the Government of the Republic of Kazakhstan dated 25 December 2019, a large quantity of hashish ranges from 5 grams to 200 grams; an especially large quantity is more than 200 grams; a large quantity of heroin ranges from 0.01 grams to 1.0 gram; an especially large quantity is more than 1.0 gram.”
Large and especially large quantities are characterised by the substantial number, weight, volume, properties and degree of effect of these substances on the human body. Where illegal acts are committed involving different types of narcotic drugs, psychotropic substances and their analogues, their quantities must be determined taking into account both their total number and their combined effect. A forensic examination is necessary to recognise the quantity of narcotic drugs, psychotropic substances or their analogues as large or especially large.
Unlike Article 259 of the Criminal Code of 1997, Part 1 of Article 296 of the Criminal Code of 2014 establishes criminal liability for acts that were previously classified as administrative offences. In addition, Parts 2, 3 and 4 of Article 296 of the Criminal Code of 2014 provide for the common characteristic of the absence of the purpose of sale of the subject matter of the crime.
Exemption from criminal liability on the grounds specified in the Note to Article 296 of the Criminal Code is possible where one of the following three conditions is met:
voluntary surrender of narcotic drugs, psychotropic substances or their analogues acquired for personal consumption;
voluntary application to a medical institution for medical assistance in connection with the non-medical consumption of narcotic drugs, psychotropic substances or their analogues;
active assistance in the detection or suppression of crimes related to the illicit circulation of narcotic drugs, psychotropic substances, their analogues and precursors, in exposing the persons who committed them, or in identifying property obtained through criminal activity.
Voluntary surrender of narcotic drugs, psychotropic substances, their analogues and precursors means the transfer of these substances and items to representatives of the authorities by a person who has a real opportunity to dispose of them in another way. When establishing this characteristic, attention should be paid to two circumstances. Firstly, there must be an actual transfer of these substances and items to the relevant persons, rather than merely the person's intention to do so, even if such intention has been expressed in writing. Secondly, the surrender of these substances and items must genuinely be voluntary and must not be forced (as a result of the threat of exposure by law enforcement officers).
The transfer of such substances and items, upon the proposal of an official conducting the relevant actions, during a person's detention, as well as during investigative actions aimed at detecting and seizing narcotic drugs, psychotropic substances or their analogues, etc., does not constitute grounds for applying paragraph 2 of the Note to Article 296 of the Criminal Code. At the same time, if narcotic drugs, psychotropic substances or their analogues are handed over before investigative actions begin, their surrender in such circumstances must be recognised as voluntary.
In accordance with paragraphs 2 and 3 of paragraph 18 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application of Legislation in Cases Related to the Illicit Circulation of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors”: “If a person suspected of committing unlawful acts voluntarily hands over narcotic drugs that could have been detected before the commencement of a personal search, search of a dwelling or other premises conducted for the purpose of detecting narcotic drugs or other substances, this shall not constitute voluntary surrender as provided for in paragraph 2 of the Note to Article 296 of the Criminal Code. If, during a search conducted in one place, a person states that narcotic drugs intended for personal consumption are being stored in another place (at a summer cottage, in a garden, at a neighbour's premises, etc.), and it would have been impossible to find them without that person's instructions, such actions shall be recognised as voluntary surrender, and, in accordance with paragraph 2 of the Note to Article 296 of the Criminal Code, the person shall be exempt from criminal liability under this Article.
Voluntary application for medical assistance in connection with the consumption of narcotic drugs may serve as grounds for exemption from criminal liability only if it occurs before the criminal prosecution authority establishes the fact of the offence.”
It should be noted that, in accordance with Article 65 of the Criminal Code, the possibility of exemption from criminal liability for committing a criminal misdemeanour or committing a crime for the first time, taking into account the personality of the perpetrator, as provided for in Article 296 of the Criminal Code, is not excluded. This also applies to persons who did not surrender narcotic drugs or psychotropic substances because they did not have them in their possession, but who voluntarily appeared and confessed to their guilt and assisted in the detection and investigation of the illicit circulation of narcotic drugs, psychotropic substances or their analogues.
At the same time, if a person voluntarily surrendered drugs but subsequently refused to cooperate with law enforcement authorities (did not state when, where and under what circumstances the drugs had been acquired, and did not admit guilt in acquiring and storing narcotic drugs), it cannot be said that grounds exist for exempting that person from liability.
Voluntary application to any medical institution for medical assistance in connection with the non-medical consumption of narcotic drugs, psychotropic substances or their analogues means that a person who consumes drugs voluntarily applies to a medical institution for the purpose of treatment for drug addiction. In this regard, they shall not be held criminally liable not only for consuming drugs, but also for the unlawful acts involving drugs committed before their arrival at the medical institution.
Active assistance in the detection or suppression of crimes related to the illicit circulation of narcotic drugs, psychotropic substances, their analogues and precursors, in exposing the persons who committed them, or in identifying property obtained through criminal activity, involves the subject's personal and voluntary participation in the activities of preliminary investigation or inquiry authorities aimed at detecting or suppressing a crime, establishing the actual circumstances of the case, identifying persons involved in the commission of the act and their whereabouts, apprehending them, searching for narcotic drugs, psychotropic substances, their analogues, etc.
Active assistance in identifying property obtained through criminal activity involves providing information not only about places where drugs are stored, manufactured or sold, but also about other property obtained through criminal activity as a result of the illicit circulation of narcotic drugs, psychotropic substances, their analogues and precursors (currency, jewellery, accounts in foreign banks and the like).
The acts provided for in Parts 1, 2 and 3 of Article 296 of the Criminal Code are classified as criminal misdemeanours.
The act provided for in Part 4 of Article 296 of the Criminal Code is classified as a serious crime.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases Declaration Decree Order Resolution Decision Report Conclusion Statement Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages
