Commentary on Article 299 of the Criminal Code of the Republic of Kazakhstan. Inducement to the Consumption of Narcotic Drugs, Psychotropic Substances and Their Analogues
1. Inducement to the consumption of narcotic drugs, psychotropic substances and their analogues —
shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or deprivation of liberty for the same period.
2. The same act committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) through the use of electronic information resources, —
shall be punishable by deprivation of liberty for a period of three to eight years.
3. The acts provided for in Parts One or Two of this Article, committed:
1) against a person known to be a minor or against two or more persons;
2) with the use of violence or the threat of its use;
3) by a criminal group, —
shall be punishable by deprivation of liberty for a period of seven to ten years.
4. The acts provided for in Parts One, Two or Three of this Article, if they have negligently resulted in the death of the victim or other grave consequences, —
shall be punishable by deprivation of liberty for a period of fifteen to twenty years or life imprisonment.
The public danger of this crime lies in the fact that, being a form of distribution of narcotic drugs, psychotropic substances and their analogues, this act involves a significant number of people, including young people and minors, in their consumption, thereby exposing them to the effects of narcotic drugs. This crime poses a threat to the nation's gene pool.
The object of the crime is public health.
The subject matter of the crime is narcotic drugs, psychotropic substances and their analogues (see the commentary to Article 296 of the Criminal Code).
The objective element of this crime consists of inducing another person to consume narcotic drugs, psychotropic substances and their analogues.
“Inducement to the consumption of narcotic drugs, psychotropic substances and their analogues shall be understood to mean,” as stated in Paragraph 15 of 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 Illegal Trafficking of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” “any intentional actions aimed at arousing in other persons a desire to consume them (persuasion, offers, advice, misleading, deception, threats, etc.).”
The actions of the perpetrator aimed at arousing a desire to consume narcotic drugs, psychotropic substances and their analogues, committed at different times against different persons or against the same person, shall be classified under Subparagraph 2) of Part 2 of Article 299 of the Criminal Code, while the same actions committed simultaneously against two or more persons shall be classified under Subparagraph 1) of Part 3 of Article 299 of the Criminal Code.
If a person who has induced another person to consume narcotic drugs, psychotropic substances or their analogues has also sold the said drugs, substances or analogues, or provided assistance in their theft or extortion, manufacture, processing, acquisition, storage, transportation or shipment, their actions shall, where there are grounds for doing so, additionally be classified under the relevant parts of Articles 296, 297 or 298 of the Criminal Code.
The consumption of narcotic drugs, psychotropic substances and their analogues involves introducing them into the human body by any means. This may include taking tablets orally, injections, smoking, inhalation, chewing and other methods.
It follows from the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 14 May 1998 that, in order to recognise inducement to consumption as a completed crime, it is not necessary for the person being induced to have actually consumed narcotic drugs, psychotropic substances or their analogues. At the same time, I consider it justified that, when determining the point at which inducement to the consumption of narcotic drugs is completed, consideration should also be given to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002, “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts,” which determines the point at which the involvement of a minor in the commission of criminal offences provided for in Articles 132, 133, 134 and 144 of the Criminal Code is completed. Since the terms “involvement” in Articles 132, 133, 134 and 144 of the Criminal Code and “inducement” in Article 299 of the Criminal Code coincide in substance, they should be interpreted in the same manner. Paragraph 25 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002 established that criminal offences provided for in Articles 132, 133, 134 and 144 of the Criminal Code shall be considered completed from the moment a minor is induced to commit a criminal offence or other antisocial acts, as well as to engage in prostitution or manufacture products of an erotic nature, when, under the influence of an adult, the minor develops the intention to commit such acts.
By its legal structure, this offence has a formal composition. The crime should be considered completed from the moment an individual is subjected to influence aimed at inducing them to consume narcotic drugs, psychotropic substances or their analogues, regardless of whether the person being induced has consumed them or whether consumption failed to take place for any reason (the refusal of the person being induced, the intervention of other persons, etc.).
At the same time, as stated in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application of Legislation in Cases Related to the Illegal Trafficking of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” it is irrelevant for the purposes of criminal liability whether the person being induced had previously consumed narcotic drugs or psychotropic substances.
The subject of the crime may be a sane natural person who has reached the age of 16.
Where a person knowingly induces a minor to consume narcotic drugs, psychotropic substances or their analogues, as provided for in Subparagraph 1) of Part 3 of Article 299 of the Criminal Code, the subject is special: a sane natural person who has reached the age of 18.
If the person inducing a minor to consume narcotic drugs, psychotropic substances or their analogues is another minor, their actions cannot be classified under Part 3 of Article 299 of the Criminal Code. In this case, liability arises without taking this particularly aggravating circumstance into account.
From the subjective perspective, the crime under consideration is committed only with direct intent. The perpetrator is aware that they are inducing another person (or other persons) to consume narcotic drugs, psychotropic substances or their analogues and desires this outcome. However, where the act negligently causes death or other grave consequences, it falls within the category of criminal offences committed with two forms of guilt (see the commentary to Article 22 of the Criminal Code).
Part 2 of the Article under consideration provides for the following qualifying circumstances of inducement to the consumption of narcotic drugs, psychotropic substances and their analogues: 1) commission by a group of persons upon prior conspiracy; 2) repeated commission (see the commentary to Part 3 of Article 297 of the Criminal Code); 3) commission through the use of electronic information resources (see the commentary to Part 3 of Article 297 of the Criminal Code).
At the same time, it should be taken into account that the actions of the perpetrator aimed at arousing a desire to consume narcotic drugs, psychotropic substances and their analogues, committed at different times against different persons or against the same person, must be classified under Subparagraph 2) of Part 2 of Article 299 of the Criminal Code as repeated acts.
Part 3 of Article 299 of the Criminal Code establishes criminal liability for inducing the consumption of narcotic drugs, psychotropic substances and their analogues where such inducement is committed: 1) against a person knowingly known to be a minor or against two or more persons; 2) with the use of violence or the threat of its use; 3) by a criminal group.
In order to hold a perpetrator criminally liable for inducing a minor to consume narcotic drugs, psychotropic substances or their analogues, it is necessary that the perpetrator reliably knew, or under the circumstances of the case could and should have known, that the victim was a minor.
Inducement to the consumption of narcotic drugs, psychotropic substances and their analogues against two or more persons shall be understood to mean intentional actions aimed at simultaneously arousing a desire to consume them in several persons (at least two).
Violence shall mean physical violence expressed in the form of beatings, blows, restriction or deprivation of liberty, infliction of minor harm to health, harm to health of moderate severity or grievous harm to health.
In this case, additional classification under Articles 106 and 107 of the Criminal Code is not required.
A threat to use violence in inducing the consumption of narcotic drugs, psychotropic substances and their analogues means a threat to use physical violence that is dangerous to the life or health of the person being induced. The threat must be real and immediate, that is, capable of immediately breaking the person's will to resist.
The commentary on the third qualifying circumstance is provided in the analysis of Part 4 of Article 297 of the Criminal Code.
Part 4 of Article 299 of the Criminal Code establishes liability for the commission of the acts provided for in Parts 1, 2 and 3 of the Article under consideration, if they have negligently resulted in the death of the victim or other grave consequences.
Other grave consequences provided for in Part 4 of Article 299 of the Criminal Code may include the development of drug addiction, the victim's suicide or attempted suicide, the onset of a mental illness or aggravation of an existing one, HIV infection, etc.
In this case, it should be taken into account that if, in the course of inducing a person to consume narcotic drugs, psychotropic substances or their analogues, the victim's death or other grave consequences occur through negligence, additional classification under other articles of the Criminal Code providing for liability for crimes against the person is not required.
This offence differs from the basic and qualified compositions of the crime, firstly, in terms of its objective element: the consequence of the crime is the negligent causing of the victim's death or other grave consequences, that is, a material composition of the crime is present; secondly, in terms of its subjective element, which in this case is characterised by two forms of guilt (as provided for in Article 22 of the Criminal Code). In this case, the person commits the act of inducing another person to consume narcotic drugs, psychotropic substances or their analogues with direct intent, while their mental attitude towards causing death or the occurrence of other grave consequences is characterised by negligence.
The act provided for in Part 1 of Article 299 of the Criminal Code is classified as a crime of medium gravity.
The acts provided for in Parts 2 and 3 of Article 299 of the Criminal Code are classified as serious crimes.
The act provided for in Part 4 of Article 299 of the Criminal Code is classified as an especially serious crime.
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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