Commentary on Article 302 of the Criminal Code of the Republic of Kazakhstan. Organizing or Maintaining Dens for the Consumption of Narcotic Drugs, Psychotropic Substances, Their Analogues, and Providing Premises for the Same Purposes
1. Organizing or maintaining dens for the consumption of narcotic drugs, psychotropic substances, their analogues, as well as providing premises for the same purposes —
shall be punishable by imprisonment for a term of three to seven years, with confiscation of property.
2. The same acts, committed:
- by a person using their official position;
- repeatedly;
- by a criminal group, —
shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.
The public danger of the crime lies in the fact that, being a form of distribution of narcotic drugs, psychotropic substances and their analogues, the specified act involves a significant number of people, especially young people, in their consumption, exposing them to the effects of narcotic substances.
The object of the crime is public health, while the additional object is public morality. According to subparagraph 69) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” health is understood as a state of complete physical, spiritual (mental) and social well-being, and not merely the absence of diseases and physical defects.
The subject matter of the crime is a den, which may be recognized as a residential premises (apartment, room, country house) or non-residential premises (basement, attic, shed) adapted and provided over an extended period for the consumption of narcotic drugs, psychotropic substances and their analogues. Service premises are often used as dens, in particular boiler rooms, premises for guards and watchmen, workshops, etc.
According to paragraph 16 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 Illicit Trafficking of Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors,” a den may be recognized as a residential or non-residential premises adapted and provided for the consumption of narcotic drugs, psychotropic substances or their analogues.
Premises provided for the same purposes may also constitute the subject matter.
The premises may be either residential or non-residential.
The main difference between a den and premises provided for the consumption of narcotic drugs, psychotropic substances and their analogues is that a den is organized exclusively for the consumption of narcotic drugs, psychotropic substances and their analogues.
The primary purpose of such premises is their use for other purposes (as residential, service, industrial premises, etc.), but they are sometimes provided for the consumption of narcotic drugs, psychotropic substances and their analogues.
The objective element of the crime is expressed in three independent alternative acts: 1) organizing dens for the consumption of narcotic drugs, psychotropic substances and their analogues; 2) maintaining such dens; 3) providing premises for the same purposes.
Organizing a den should be understood as actions aimed at its establishment (finding, renting, adapting and equipping premises, etc.), and, where premises are already available, attracting persons wishing to use them for the consumption of narcotic drugs, psychotropic substances and their analogues, etc.
Maintaining a den means carrying out a system of actions aimed at ensuring its operation (providing material support, security, repairs, servicing clients, obtaining narcotic drugs, psychotropic substances and their analogues for consumption, etc.).
If the organization and maintenance of a den are accompanied by the illicit trafficking of narcotic drugs or psychotropic substances, or by inducing others to consume them, such actions must be classified cumulatively under the relevant part of Article 302 of the Criminal Code and other articles of the Criminal Code establishing liability for their commission.
Providing premises means the occasional performance of any actions aimed at creating conditions and opportunities for the consumption of narcotic drugs, psychotropic substances and their analogues.
With regard to Article 302 of the Criminal Code, the Supreme Court understands the provision of premises for the same purposes as providing premises for the organization or maintenance of a den.
Actions by a person consisting of providing premises once for the joint consumption of narcotic drugs do not constitute the elements of a criminal offense under Article 302 of the Criminal Code, since classification under this article requires that the guilty person organize or maintain residential or non-residential premises as a den for the systematic consumption of narcotic drugs, or transfer such premises to other persons for the purpose of organizing and maintaining a den.
The crime is considered completed from the moment the den is organized or maintained, as well as from the moment premises are provided for the consumption of narcotic drugs, psychotropic substances and their analogues.
The subject of the crime is a sane natural person who has reached the age of 16.
From the subjective perspective, the crime under consideration is committed only with direct intent: the perpetrator is aware that they are organizing or maintaining a den or providing premises for the consumption of narcotic drugs, psychotropic substances and their analogues, and desires to perform these actions.
Part 2 of Article 302 of the Criminal Code provides for the qualifying circumstances of this crime: 1) commission by a person using their official position; 2) repeated commission; 3) commission by a criminal group (see the commentary to Part 2 of Article 298 of the Criminal Code and Part 3 of Article 297 of the Criminal Code).
The acts provided for in Parts 1 and 2 of Article 302 of the Criminal Code are classified as serious crimes.
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 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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