Commentary on Article 299-1. Propaganda or Illegal Advertising of Narcotic Drugs, Psychotropic Substances or Their Analogues, and Precursors of the Criminal Code of the Republic of Kazakhstan
1. Propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors –
shall be punishable by deprivation of liberty for a term of up to three years.
2. The same acts committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) in educational organizations, as well as at facilities where large numbers of people gather;
4) using mass media or electronic information resources;
5) using one's official position, –
shall be punishable by deprivation of liberty for a term of three to six years.
The public danger of this crime lies in the fact that, when these acts are committed, narcotic drugs, psychotropic substances or their analogues, and precursors are distributed, and a significant number of persons are involved in their consumption, especially young people, including minors. This crime poses a threat to the nation's gene pool.
The object of the act under consideration is public health.
The subject matter of the crime is narcotic drugs, psychotropic substances or their analogues, and precursors.
According to subparagraph 31) of Article 1 of the Law of the Republic of Kazakhstan dated July 10, 1998, “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counter Their Illicit Trafficking and Abuse Thereof,” precursors are substances used in the production, manufacture and processing 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 in accordance with the legislation of the Republic of Kazakhstan and its international treaties, including the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
In accordance with Article 24 of the aforementioned Law, propaganda of narcotic drugs, psychotropic substances, their analogues and precursors, that is, the dissemination of any information, regardless of the form and method of its presentation, concerning narcotic drugs, psychotropic substances, their analogues and precursors, methods and techniques for their development, manufacture and use, as well as the advantages and benefits of using certain types of narcotic drugs, psychotropic substances and their analogues, where such dissemination is aimed at forming a positive or tolerant attitude among an indefinite circle of persons towards the illicit trafficking and illicit consumption of narcotic drugs, psychotropic substances or their analogues, or at committing other acts for these purposes, is prohibited (paragraph 2).
Advertising of narcotic drugs and psychotropic substances, their analogues included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan (Table I), as well as precursors (Table IV), that is, information about the places or methods of their acquisition, their quality, price and other properties, disseminated and/or placed in any location, in any form and by any means, intended for an indefinite circle of persons and designed to generate or maintain interest in narcotic drugs and psychotropic substances, their analogues, and to promote their illicit consumption and distribution, is prohibited.
Advertising of narcotic drugs and psychotropic substances, their analogues included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan (Tables II and III), may be carried out exclusively in specialized printed publications intended for medical and pharmaceutical professionals. The distribution, for advertising purposes, of samples of medicinal products containing narcotic drugs or psychotropic substances, or their analogues, is prohibited (paragraph 2). See also the Law of the Republic of Kazakhstan dated December 29, 2003, “On Advertising.”
The objective element of the crime under consideration is expressed in the propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors.
An obligatory condition for criminal liability for this crime is the purpose of promoting or advertising narcotic drugs, psychotropic substances or their analogues, and precursors.
Propaganda is the detailed explanation and dissemination, in any form (through mass media and public speeches by individuals), of views, ideas, doctrines and knowledge; ideological influence on the broad masses of the population.
In the criminal-law sense, propaganda of narcotic drugs, psychotropic substances or their analogues, and precursors is understood as the dissemination among a broad circle of persons of information that justifies their presence in the circulation of goods and services, increases the number of drug users, and encourages people to try other types of drugs.
The form of propaganda may be any: oral, written, using mass media or electronic information resources, posting on the Internet, creating literary works, etc.
Advertising should be understood as displaying such items for public viewing or communicating information about them to an indefinite circle of persons by any means (distribution of letters, advertising leaflets, advertising in mass media). Narcotic drugs, psychotropic substances or their analogues, and precursors may be advertised both by their manufacturers and by other persons.
This crime is a formal offence and is considered completed at the moment the specified actions are committed.
The subjective element is characterized by direct intent: the perpetrator is aware that they are promoting and advertising narcotic drugs, psychotropic substances or their analogues, and precursors, and desires to do so.
The subject of this crime is a sane individual who has reached the age of 16.
Part 2 of Article 299-1 of the Criminal Code provides for liability for the same acts described in Part 1 of Article 299-1 of the Criminal Code, but committed by a group of persons upon prior conspiracy, repeatedly, in educational organizations, as well as at facilities where large numbers of people gather, using mass media or electronic information resources, or using one's official position.
A group of persons acting upon prior conspiracy must consist of two or more persons. When propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors is committed by a group of persons upon prior conspiracy, all members of the group must be co-perpetrators.
The characteristics of a group of persons acting upon prior conspiracy are set out in Part 2 of Article 31 of the Criminal Code (see the commentary to Article 31 of the Criminal Code).
Repeated commission of criminal offences is regulated by Article 12 of the Criminal Code. When determining the elements of repeated commission, one should be guided by the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Qualification of Repeated Criminal Offences and the Aggregation of Criminal Offences.”
The element of repeated commission in cases of propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors is established when one person has previously committed two or more acts provided for by the same article or part of Article 299-1 of the Criminal Code.
The commission by a person of acts provided for by Article 299-1 of the Criminal Code shall not be recognized as repeated if the person was released from criminal liability for a previously committed offence under Article 299-1 of the Criminal Code on grounds established by law.
Subparagraph 3) of Part 2 of Article 299-1 of the Criminal Code provides for liability for acts committed in educational organizations, as well as at facilities where large numbers of people gather.
The characteristics of educational organizations are provided in the commentary to Article 297 of the Criminal Code.
The list of facilities where large numbers of people gather is set out in subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated July 13, 1999, “On Counteracting Terrorism.”
Thus, where propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors is carried out in the specified educational organizations, as well as at facilities where large numbers of people gather, the actions of the perpetrator fall within the elements of Part 2 of Article 299-1 of the Criminal Code.
The use of mass media or electronic information resources means propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors published in a periodical printed publication, as well as disseminated via radio or television, or through the use of technical means for transmitting and processing information (including websites on publicly accessible telecommunications networks, such as the Internet, etc.).
Electronic information resources are of important strategic significance for the economy and security of the state. The list of state electronic information resources is determined by Resolution No. 863 of the Government of the Republic of Kazakhstan dated October 1, 2007.
The element of “using electronic information resources” in the propaganda or illegal advertising of narcotic drugs, psychotropic substances or their analogues, and precursors is обусловлено by their public accessibility.
The commission of unlawful acts provided for by Part 1 of Article 299-1 of the Criminal Code through the use of one's official position increases the public danger of this crime. In this case, the subjects of the crime are officials who, by virtue of their official duties, had access to narcotic drugs, psychotropic substances, their analogues and precursors, or persons to whom such substances had been issued for official use or entrusted for safekeeping.
The act provided for by Part 1 of Article 299-1 of the Criminal Code is classified as a crime of medium gravity.
The act provided for by Part 2 of Article 299-1 of the Criminal Code is classified as a serious crime.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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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