Commentary on Article 298. Theft or Extortion of Narcotic Drugs, Psychotropic Substances, or Their Analogues of the Criminal Code of the Republic of Kazakhstan
1. Theft or extortion of narcotic drugs, psychotropic substances, or their analogues –
shall be punishable by imprisonment for a term of three to seven years.
2. The same act committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) by a person using their official position;
4) with the use of violence that is not dangerous to life or health, or with the threat of using such violence, –
shall be punishable by imprisonment for a term of six to ten years, with confiscation of property.
3. The acts provided for in parts one or two of this Article, committed:
1) by a criminal group;
2) in respect of narcotic drugs, psychotropic substances, or their analogues in a large amount;
3) with the use of violence dangerous to life or health, or with the threat of using such violence, –
shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.
4) The acts provided for in parts one, two or three of this Article, committed in respect of narcotic drugs, psychotropic substances, or their analogues in an especially large amount, –
shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment, with confiscation of property.
The public danger of the crime lies primarily in causing substantial harm to human health, as well as in causing damage to property relations.
The object of the crime is public health. Property relations may constitute an additional object.
The subject matter of the crime consists of narcotic drugs, psychotropic substances, and their analogues (see the commentary to Article 296 of the Criminal Code).
As in Article 297 of the Criminal Code, precursors are not the subject matter of the crime under Article 298 of the Criminal Code. In the event of their theft or extortion, the actions of the guilty person should be classified as criminal offences against property. We believe that this constitutes a gap in criminal legislation.
The objective element of the crime consists of the theft or extortion of narcotic drugs, psychotropic substances, or their analogues.
According to subparagraph 17) of Article 3 of the Criminal Code, theft means the unlawful and gratuitous seizure and/or conversion of another person's property for the benefit of the perpetrator or other persons, committed with mercenary intent and causing damage to the owner or another lawful possessor of such property.
Within the meaning of the disposition of Article 298 of the Criminal Code, theft of narcotic drugs, psychotropic substances, or their analogues means their unlawful acquisition by any method (secretly, openly, through deception or abuse of trust) and their conversion for the benefit of the perpetrator or other persons.
The content of these types of theft and extortion is understood in the same way as in the analogous offences provided for in Articles 188, 189, 190, 191 and 194 of the Criminal Code (see the commentaries to these Articles).
Extortion of narcotic drugs, psychotropic substances, or their analogues means demanding their transfer under the threat of using violence or destroying or damaging another person's property, as well as under the threat of disclosing information that discredits the victim or their close relatives, or other information the disclosure of which may cause substantial harm to the interests of the victim or their close relatives.
Liability for this crime arises where narcotic drugs, psychotropic substances, or their analogues are stolen or extorted from any organizations and institutions, as well as from individual citizens who possess them either lawfully or unlawfully. The collection of narcotic-containing plants from protected fields also constitutes theft of narcotic drugs.
The theft or extortion of narcotic drugs, psychotropic substances, or their analogues, followed by their storage, processing, transportation, dispatch or sale, should be classified under Article 298 of the Criminal Code and, taking into account the specific circumstances of the case, additionally under Articles 296 and 297 of the Criminal Code as an aggregate of criminal offences.
Where violations of the rules governing the circulation of narcotic drugs, psychotropic substances, toxic substances, or their analogues are committed for the purpose of their subsequent theft or are associated with their theft, the act should be classified cumulatively under Part 2 of Article 303 and the relevant part of Article 298 of the Criminal Code.
The theft of narcotic drugs, psychotropic substances, or their analogues is considered completed when the perpetrator has seized these drugs, substances or their analogues and has a real opportunity to dispose of or use them at their own discretion; that is, by its legal construction, this crime constitutes a material offence.
Extortion of narcotic drugs, psychotropic substances, or their analogues should be considered a completed criminal offence from the moment the demand for their transfer is made.
The theft or extortion of narcotic drugs, psychotropic substances, or their analogues should be distinguished from other related criminal offences: theft of another person's property (Articles 187–193 of the Criminal Code) or extortion thereof (Article 194 of the Criminal Code), theft or extortion of radioactive substances, radioactive waste or nuclear materials (Article 284 of the Criminal Code), and theft or extortion of weapons, ammunition, explosive substances and explosive devices (Article 291 of the Criminal Code).
The main distinction between the above-mentioned acts lies in the object and subject matter of the crime. In cases of theft or extortion of another person's property, the object of the crime is the right of ownership, while the subject matter is another person's property. In cases of theft or extortion of radioactive substances, radioactive waste or nuclear materials, the object of the crime is public safety, while the subject matter is radioactive substances, radioactive waste or nuclear materials. In cases of theft or extortion of weapons, ammunition, explosive substances and explosive devices, the object of the crime is public safety, while the subject matter is weapons, ammunition, explosive substances and explosive devices.
The subject of the crime is a sane natural person who has reached the age of 14.
The subjective element is characterized by guilt in the form of direct intent. The person realizes that they are committing theft or extortion of narcotic drugs, psychotropic substances or their analogues and desires to do so.
The theft or extortion of narcotic drugs, psychotropic substances, or their analogues entails increased liability under Part 2 of Article 298 of the Criminal Code if committed: 1) by a group of persons upon prior conspiracy; 2) repeatedly; 3) by a person using their official position; 4) with the use of violence that is not dangerous to life or health, or with the threat of using such violence.
The first two elements were examined when analyzing subparagraphs 1) and 2) of Part 3 of Article 297 of the Criminal Code. As regards theft or extortion committed by a person using their official position, this should be understood as the commission of the specified acts by a person holding a position in public service, as well as by a person performing their functions in a commercial or other organization, or by another person who has access to the specified drugs, substances or analogues, or to whom they have been entrusted for official use or safekeeping (for example, doctors, feldshers, pharmacists, nurses, and employees of an enterprise (including security guards) where narcotic drugs, psychotropic substances or their analogues are produced).
Violence that is not dangerous to life or health means physical violence expressed in the infliction of beatings or blows, restriction or deprivation of liberty, infliction of minor harm to the victim's health, and other violent acts that have not caused substantial harm to health.
A threat to use violence in the course of theft or extortion constitutes a threat to use physical violence that is not dangerous to human life or health. The threat must be real and immediate, that is, capable of immediately breaking the person's will to resist.
Part 3 of Article 298 of the Criminal Code provides for liability for the theft or extortion of narcotic drugs, psychotropic substances, or their analogues committed: 1) by a criminal group; 2) in respect of narcotic drugs, psychotropic substances, or their analogues in a large amount; 3) with the use of violence dangerous to life or health, or with the threat of using such violence. Commentary on the first two elements was provided when analyzing Part 4 of Article 297 and Part 3 of Article 296 of the Criminal Code.
According to paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, “On Judicial Practice in Cases of Theft,” violence dangerous to life or health should be understood as causing harm to health through the use of weapons or objects used as weapons and adapted to cause harm to health, as well as other violence resulting in the infliction of grievous or moderate bodily harm on the victim.
At the same time, minor bodily harm may also be recognized as dangerous to the victim's life or health if it is inflicted under circumstances dangerous to the victim's life or health (for example, multiple blows with hands or feet to vital parts of the body, etc.) and requires outpatient or inpatient treatment for recovery.
A threat to use violence in the course of theft or extortion constitutes a threat to inflict violence dangerous to human life or health. The threat must be real.
The theft or extortion of narcotic drugs, psychotropic substances and their analogues committed with the use of violence dangerous to life or health, or with the threat of inflicting such violence, is fully covered by the disposition of subparagraph 3) of Part 3 of Article 298 of the Criminal Code and does not require additional classification under Articles 192 or 194 of the Criminal Code.
In cases where the specified acts are committed and result in grievous bodily harm to the victim, the act should also be classified under subparagraph 3) of Part 3 of Article 298 of the Criminal Code. Part 4 of Article 298 of the Criminal Code provides for an especially qualifying circumstance — an especially large amount of narcotic drugs, psychotropic substances or their analogues (see the commentary to Part 4 of Article 296 of the Criminal Code).
The acts provided for in Parts 1 and 2 of Article 298 of the Criminal Code are classified as serious crimes.
The acts provided for in Parts 3 and 4 of Article 298 of the Criminal Code are classified as especially serious crimes.
**Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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