Commentary on Article 297 of the Criminal Code of the Republic of Kazakhstan. Illegal Manufacture, Processing, Acquisition, Storage, Transportation for the Purpose of Sale, Dispatch or Sale of Narcotic Drugs, Psychotropic Substances and Their Analogues

1. Illegal manufacture, processing, acquisition, storage, transportation for the purpose of sale, dispatch or sale of narcotic drugs, psychotropic substances and their analogues –

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

2. The same acts committed in respect of narcotic drugs, psychotropic substances or their analogues in a large quantity –

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

3. The acts provided for in the first part of this Article, committed:

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

2) repeatedly;

3) in respect of narcotic drugs, psychotropic substances or their analogues in an especially large quantity;

4) by an official using their official position;

5) through the use of electronic information resources;

6) in a public place –

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

4. The acts provided for in the first, second or third parts of this Article, committed by a criminal group, as well as the sale of narcotic drugs, psychotropic substances or their analogues in educational organizations or knowingly to a minor –

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

The public danger of crimes related to the illegal circulation of narcotic drugs, psychotropic substances and their analogues is increased by the fact that Article 297 of the Criminal Code concerns unlawful acts committed for the purpose of selling narcotic drugs, psychotropic substances and their analogues, that is, for the purpose of distributing them.

The object of the crime is public health.

The subject matter of the crime comprises narcotic drugs, psychotropic substances and their analogues (see the commentary to Article 296 of the Criminal Code).

The objective element of the crime is expressed through the following actions: illegal manufacture, processing, acquisition, storage, transportation for the purpose of sale, dispatch or sale of narcotic drugs, psychotropic substances and their analogues (for the characteristics of illegal manufacture, processing, acquisition, storage and transportation, see the commentary to Article 296 of the Criminal Code).

The distinguishing feature of these actions under Article 297 of the Criminal Code is that they are committed for the purpose of sale.

According to paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998, “On the Application of Legislation in Cases Related to the Illegal Circulation of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” illegal dispatch of narcotic drugs, psychotropic substances and their analogues means sending them by any means of communication, through a courier, as well as using animals or birds. Pursuant to paragraph 5 of Article 13 of the Law of the Republic of Kazakhstan dated July 10, 1998, “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counteract Their Illegal Circulation and Abuse,” the dispatch of narcotic drugs, psychotropic substances and precursors in postal items, including international postal items, is prohibited.

Dispatch is considered a completed crime at the moment the dispatch is formalized, that is, when the luggage is handed over to an official representative of a communications enterprise or transport organization, or to a person through whom the dispatch is carried out.

For the purposes of legal classification, it is irrelevant whether the addressee has received the narcotic drugs, psychotropic substances or their analogues sent to them. If the crime was not completed for reasons beyond the offender's control (for example, the person was detained while the receipt was being issued or at the moment the luggage was being packed for dispatch, and so on), their actions should be classified as attempted dispatch of such substances.

It should be noted that criminal liability for the illegal dispatch of narcotic drugs, psychotropic substances and their analogues arises only where such dispatch is carried out within the territory of the Republic of Kazakhstan.

The illegal dispatch of narcotic drugs, psychotropic substances and their analogues across the customs border of the Customs Union or the State Border of the Republic of Kazakhstan is classified under Article 286 of the Criminal Code as smuggling of items withdrawn from circulation or items whose circulation is restricted.

The illegal dispatch of narcotic drugs, psychotropic substances and their analogues from abroad is additionally subject to classification under Article 286 of the Criminal Code.

According to paragraph 9 of the above-mentioned Regulatory Resolution of the Supreme Court, illegal sale of narcotic drugs, psychotropic substances and their analogues means any unlawful method of their realization or transfer from the possession of one person into the possession of another (sale, gift, transfer in repayment of a debt, exchange, lending, administration by injection to another person, including by contactless means using “dead drops,” Internet resources, electronic wallets, and so forth).

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 inducement to consume narcotic drugs, psychotropic substances or their analogues under Article 299 of the Criminal Code, if they were the ones who induced the person to consume 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 likewise be classified cumulatively with Article 302 of the Criminal Code.

If an adult sells narcotic drugs, psychotropic substances or their analogues to minors, thereby involving them in criminal activity (the acquisition of narcotic drugs), that person shall be held liable for the aggregate of offences provided for in Part 1 of Article 132, Part 1 of Article 133 and Article 297 of the Criminal Code. Where facts of inducing knowingly underage persons to consume narcotic drugs are established, the actions shall be classified under subparagraph 1) of Part 3 of Article 299 of the Criminal Code.

If the sale of narcotic drugs by injection results in HIV infection, grievous bodily harm or death, the actions of the perpetrator must be classified cumulatively with criminal offences against the person.

If a person fraudulently sells some substance as narcotics, for example, mumiyo, with the purpose of taking possession of citizens' money or property, their actions must be classified as fraud (Article 190 of the Criminal Code). The actions of the person who received this substance must be classified as attempted illegal acquisition of narcotic drugs or psychotropic substances, since the crime was not completed for reasons beyond that person's control. The funds obtained in this manner are subject to confiscation in favour of the state.

The sale may be carried out both by a person who manufactured the narcotic drugs, psychotropic substances or their analogues and by persons who had no involvement whatsoever in their manufacture.

If the guilty person, at the request of the actual owner of narcotic drugs, psychotropic substances or their analogues, directly participates in their sale, their actions are subject to classification as co-perpetration of the sale.

The actions of an intermediary in the sale or acquisition of narcotic drugs, psychotropic substances or their analogues should be classified as complicity in the sale or acquisition of narcotic drugs, psychotropic substances or their analogues, depending on whose interests (those of the seller or the purchaser) the intermediary acts in.

If a person illegally manufactures, processes, acquires, stores or transports narcotic drugs, psychotropic substances or their analogues for the purpose of their subsequent sale, but fails to carry out their intention to completion for reasons beyond their control, the act, where there are sufficient grounds, should be classified under Part 1 of Article 24 and the relevant part of Article 297 of the Criminal Code as preparation for the illegal sale of narcotic drugs, psychotropic substances or their analogues.

If a person uses an illegally acquired narcotic drug or psychotropic substance for the purpose of treating animals, their actions do not contain the elements of a crime giving rise to criminal liability for the illegal sale of these substances.

The sale is considered completed at the moment when narcotic drugs, psychotropic substances or their analogues pass or are transferred from the actual possession of one person into the possession of another. It should be noted that the transfer of narcotic drugs may take a considerable period of time, for example, where they are sold through an intermediary or using concealed locations. In this case, at the moment the sale is completed, the person to whom the narcotic drugs were sold may not yet have received them.

From the subjective standpoint, the crime under consideration is characterized by an intentional form of guilt and only direct intent. The perpetrator is aware of the public danger of the illegal circulation of narcotic drugs, psychotropic substances and their analogues and desires to engage in such conduct. An obligatory element of the subjective aspect is the existence of the purpose of selling or dispatching narcotic drugs, psychotropic substances or their analogues.

The motive guiding the perpetrator (the presence or absence of mercenary motives, the desire to make a profit or, conversely, to get rid of the substances, to stop consuming them, and so forth) is irrelevant for the legal classification of their actions, although it is significant for assessing the degree of public danger.

When deciding whether there was intent to illegally manufacture, process, acquire, store or transport narcotic drugs, psychotropic substances or their analogues for the purpose of sale, it is necessary to proceed from the totality of evidence showing that these substances were actually prepared for sale (for example, the discovery of the above-mentioned substances in large quantities that exclude the possibility of their use solely for personal consumption, their packaging into individual doses, the presence of instruments or equipment for their manufacture or packaging, the establishment of the fact that the perpetrator does not personally consume narcotic drugs, and so forth) (paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court).

The sale of narcotic drugs, psychotropic substances or their analogues is subject to classification under Part 1 of Article 297 of the Criminal Code if it is committed in respect of narcotic drugs, psychotropic substances or their analogues in a quantity below the large-quantity threshold.

The subject of the crime is a sane natural person who has reached the age of 16.

Part 2 of Article 297 of the Criminal Code establishes criminal liability for the acts provided for in Part 1 of Article 297 of the Criminal Code when committed in respect of narcotic drugs, psychotropic substances or their analogues in a large quantity, the characteristics of which are set out in the commentary to Part 3 of Article 296 of the Criminal Code. When determining the quantities of narcotic drugs, psychotropic substances and their analogues, the note to Article 296 of the Criminal Code must be followed.

Part 3 of Article 297 of the Criminal Code provides for the following aggravating circumstances: 1) commission by a group of persons acting by prior agreement; 2) repeated commission; 3) commission in respect of narcotic drugs, psychotropic substances or their analogues in an especially large quantity; 4) commission by an official using their official position; 5) commission through the use of electronic information resources; 6) commission in a public place.

A group of persons acting by prior agreement must consist of two or more persons. When illegal acts are committed for the purpose of sale, dispatch or sale of narcotic drugs, psychotropic substances or their analogues by a group of persons acting by prior agreement, all members of the group must be co-perpetrators.

The characteristics of a group of persons acting by prior agreement are set out in Part 2 of Article 31 of the Criminal Code.

Since the disposition of Part 1 of Article 297 of the Criminal Code is alternative in nature, a member of the group may perform all the listed types of illegal acts, several of them or only one (for example, only manufacture or only sale of narcotic drugs). In this case, co-perpetration may be parallel, where all members of the group act at the same time and in the same place (acquiring, 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 or processes the substances, another transports them, the third stores them, and the fourth sells them.

Repeated commission of crimes is regulated by Article 12 of the Criminal Code. When determining the characteristics of repeated commission, it is necessary to follow the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Classification of Repeated Criminal Offences and the Aggregate of Criminal Offences.”

In accordance with paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “On the Application of Legislation in Cases Related to the Illegal Circulation of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” the actions of a person who illegally acquired or stored narcotic drugs, psychotropic substances or their analogues for the purpose of sale, or manufactured or processed them for the purpose of sale or without such purpose, or sold them, shall be classified as repeated commission where that person had previously committed one or more of the above-mentioned socially dangerous acts and had not been convicted for them. A crime shall not be considered to have been committed repeatedly if the person was released from criminal liability in accordance with the procedure established by law for the previously committed crime or if the limitation period for bringing the person to criminal liability for such crime has expired.

Where a person commits two acts, one of which is subject to classification under the relevant part of Article 296 of the Criminal Code and the other under the relevant part of Article 297 of the Criminal Code, the element of repeated commission is absent. These acts are classified cumulatively as criminal offences.

The sale of narcotic drugs, psychotropic substances or their analogues by one person to several purchasers, or two or more times to the same purchaser, including at short intervals, may be classified as repeated sale of narcotic drugs, psychotropic substances or their analogues if it is established that each sale was carried out by the perpetrator pursuant to an independent intent to commit each individual act of sale.

Repeated commission must be distinguished from a continuing crime, that is, a crime committed pursuant to a single intent. Since the disposition of Part 1 of Article 297 of the Criminal Code is alternative in nature, the commission of any of the acts listed therein constitutes an already 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 repeated commission. Repeated commission should be understood as the manufacture, processing, acquisition, storage for the purpose of sale, transportation, dispatch or sale of several batches of narcotic drugs, or the manufacture of one batch and transportation of another.

It should be noted that Part 3 of Article 297 of the Criminal Code provides only for homogeneous repeated commission, that is, the repeated commission of two or more acts provided for exclusively in Part 1 of Article 297 of the Criminal Code. The commission of other acts related to the illegal circulation of narcotic drugs does not constitute repeated commission. Thus, the acquisition or storage of one batch of narcotic drugs without the purpose of sale and another batch for the purpose of sale cannot be classified as repeated commission. In this case, there is an aggregate of criminal offences, and the actions of the perpetrator should be classified under Part 2 of Article 296 of the Criminal Code and Part 3 of Article 297 of the Criminal Code. Previous theft or extortion of narcotic drugs, illegal cultivation of plants prohibited for cultivation, and inducement to consume narcotic drugs also do not constitute repeated commission.

Where several crimes provided for in different parts of Articles 296 and 297 of the Criminal Code are committed, these acts as a whole are subject to classification only under the part of the relevant Article that provides for the more severe punishment and encompasses the elements of each criminal offence. At the same time, the aggravating circumstances established in relation to acts specified in other parts of the relevant article of the criminal law must be included in the indictment and indicated in the judgment.

According to paragraph 9-3 of the above-mentioned Regulatory Resolution of the Supreme Court, the actions of a person involving the illegal manufacture, processing, acquisition, transportation or storage of narcotic drugs in a large quantity for the purpose of sale, followed by repeated sale of part of those drugs, are subject to classification under subparagraph 2) of Part 3 of Article 297 of the Criminal Code, while a single sale of part of those drugs is subject to classification under Part 2 of Article 297 of the Criminal Code.

The actions of a person involving the illegal manufacture, processing, acquisition, transportation or storage of narcotic drugs in an especially large quantity for the purpose of sale, followed by a single sale of part of those drugs, are subject to classification under subparagraph 3) of Part 3 of Article 297 of the Criminal Code.

The actions of a person involving the illegal manufacture, processing, acquisition, transportation or storage of narcotic drugs in an especially large quantity for the purpose of sale, followed by repeated sale of part of those drugs, are subject to classification under subparagraphs 2) and 3) of Part 3 of Article 297 of the Criminal Code.

At the same time, the elements of all acts committed by the perpetrator, namely the illegal manufacture, processing, acquisition, transportation or storage of narcotic drugs for the purpose of sale, as well as the dispatch and sale of narcotic drugs, must be included in the indictment and indicated in the judgment.

The especially large quantity of narcotic drugs, psychotropic substances and their analogues is explained in the commentary to Part 4 of Article 296 of the Criminal Code.

The commission of illegal acts provided for in Parts 1 and 2 of Article 297 of the Criminal Code by an official using their official position increases the public danger of this crime. The concept and characteristics of an official are set out in subparagraph 26) of Article 3 of the Criminal Code.

In this case, the subjects of the crime are officials who, by virtue of their official duties, had access to narcotic drugs, psychotropic substances or their analogues, or to instruments or equipment used for their manufacture or processing, or persons to whom such substances were issued for official use or entrusted for safekeeping.

By the Law of the Republic of Kazakhstan dated December 27, 2019, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and Strengthening the Protection of Individual Rights,” Part 3 of Article 297 of the Criminal Code of the Republic of Kazakhstan was supplemented with subparagraphs 5) and 6), worded as follows: “5) through the use of electronic information resources; 6) in a public place.”

Electronic information resources are of significant strategic importance for the economy and security of the state. The list of state electronic information resources is defined by the Resolution of the Government of the Republic of Kazakhstan dated October 1, 2007. The aggravating circumstance “through the use of electronic information resources” in the commission of illegal acts for the purpose of sale, dispatch or sale of narcotic drugs, psychotropic substances and their analogues is обусловлено their public accessibility.

Part 3 of Article 297 of the Criminal Code establishes criminal liability for the acts provided for in Part 1 of Article 297 of the Criminal Code when committed in respect of narcotic drugs, psychotropic substances or their analogues in a public place. The main characteristics that make it possible to classify a location as a public place are explained in the commentary to Part 1 of Article 296 of the Criminal Code.

According to paragraph 10 of the Regulatory Resolution of the Supreme Court dated May 14, 1998:

“For the purposes of subparagraph 6) of Part 3 of Article 297 of the Criminal Code, a public place shall mean the places specified in the Rules for the Reception and Registration of Applications, Reports or Official Reports on Criminal Offences, as well as for Maintaining the Unified Register of Pre-Trial Investigations, approved by Order No. 89 of the Prosecutor General of the Republic of Kazakhstan dated September 19, 2014, registered with the Ministry of Justice of the Republic of Kazakhstan on September 23, 2014, under No. 9744.

The fact that an act was committed specifically in a public place must be proven in accordance with the requirements of Article 113 of the Criminal Procedure Code, with the time, place, method and other circumstances of its commission being established. The public nature of the commission of a crime in a public place is a mandatory element for classifying an act under subparagraph 6) of Part 3 of Article 297 of the Criminal Code.”

Part 4 of Article 297 of the Criminal Code establishes liability for the acts provided for in Parts 1, 2 and 3 of Article 297 of the Criminal Code when committed by a criminal group, as well as for the sale of narcotic drugs, psychotropic substances or their analogues in educational organizations or knowingly to a minor.

The definition of a criminal group is contained in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.

The sale of narcotic drugs, psychotropic substances or their analogues in educational organizations or knowingly to a minor, regardless of the method (publicly or secretly), entails liability under Part 4 of Article 297 of the Criminal Code and does not require additional classification under subparagraph 6) of Part 3 of Article 297 of the Criminal Code. When determining the concept of an educational organization, it is necessary to proceed from the provisions of Article 40 of the Law of the Republic of Kazakhstan dated July 27, 2007, “On Education.”

According to Article 40 of the Law of the Republic of Kazakhstan “On Education,” educational organizations are legal entities, as well as branches of legal entities having the status of international schools, which implement one or more educational programmes and/or provide for the maintenance and upbringing of students and pupils, regardless of their form of ownership and organizational and legal form, as well as individual entrepreneurs operating without the establishment of a legal entity who implement general educational programmes for preschool upbringing and education. Depending on the educational programmes implemented, educational organizations may be of the following types:

“1) preschool organizations;

general secondary education organizations (primary, basic secondary and general secondary);

technical and vocational education organizations;

post-secondary education organizations;

excluded by Law of the Republic of Kazakhstan No. 171-VI dated July 4, 2018;

higher and/or postgraduate education organizations;

specialized educational organizations;

special education organizations;

educational organizations for orphans and children left without parental care;

additional education organizations for children;

additional education organizations for adults.

The nomenclature of types of educational organizations shall be approved by the authorized body in the field of education (paragraph 4).”

Thus, the sale of narcotic drugs, psychotropic substances or their analogues in the above-mentioned educational organizations falls within the elements of Part 4 of Article 297 of the Criminal Code.

Minors are persons who have not reached the age of 18.

In accordance with subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated August 8, 2002, “On the Rights of the Child in the Republic of Kazakhstan,” a child is a person who has not reached the age of eighteen (majority).

For this aggravating circumstance to be imputed to the guilty person, the condition of knowledge must be present, that is, the person must have reliable knowledge that they are selling narcotic drugs, psychotropic substances or their analogues to a person under the age of 18. At the same time, the guilty person may not always be aware of the victim's age. However, the factual circumstances, physical and mental condition of the victim must unequivocally indicate that the person is a minor.

If the guilty person was honestly mistaken about the victim's age and the victim's external characteristics did not indicate that they were underage, there are no grounds for classifying the unlawful actions under this aggravating circumstance of Part 4 of Article 297 of the Criminal Code.

The sale of narcotic drugs, psychotropic substances or their analogues in educational organizations or knowingly to a minor, regardless of the method (publicly or secretly), entails liability under Part 4 of Article 297 of the Criminal Code and does not require additional classification under subparagraph 6) of Part 3 of Article 297 of the Criminal Code.

It should be noted that where several crimes provided for in different parts of Article 297 of the Criminal Code are committed, these acts as a whole are subject to classification only under the part of the said Article that provides for the more severe punishment and encompasses the elements of each crime.

The acts provided for in Parts 1 and 2 of Article 297 of the Criminal Code are classified as serious crimes.

The acts provided for in Parts 3 and 4 of Article 297 of the Criminal Code are classified as particularly serious crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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