On the application of legislation in cases related to the illicit trafficking of narcotic drugs, psychotropic substances, their analogues and precursors
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3.
The footnote. The title is in the wording of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The footnote. Throughout the text:
the words "substances", "substances", "substance", "substances", "substances" are supplemented respectively with the words ", their analogues", ", their analogues", ", their analogues", ", their analogues", ", their analogues";
the words "Crime", "crime", "crimes", "crimes", "perpetrator of the crime", "each crime", "subject of the crime", "this crime" are replaced respectively by the words "Criminal offense", "criminal offense", "criminal offenses", "criminal offenses", "the perpetrator of a criminal offense", "each criminal offense", "the subject of a criminal offense", "this criminal offense";
The words "organized group or criminal community (criminal organization)" have been replaced by the words "criminal group" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The footnote. The words "potent" and "potent" were deleted from the title and preamble of the resolution, paragraph 12, and the first and second paragraphs of paragraph 13; in the preamble, after the words "used for the manufacture of narcotic drugs or psychotropic substances", the words "and poisonous" were supplemented by Resolution No. 19 of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000.
The preamble and the name as amended are the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 7.
In order to ensure uniformity in the application of legislation establishing liability for illicit trafficking in narcotic drugs, psychotropic and poisonous substances, their analogues, precursors, tools or equipment used for the manufacture of narcotic drugs or psychotropic and poisonous substances, their analogues, and improving the quality of the administration of justice in this category of cases, the Plenary Session of the Supreme Court of the Republic of Kazakhstan decides:
To clarify that criminal liability is established for the illicit trafficking of those narcotic drugs, psychotropic substances, and their analogues that are included in the "List of Narcotic Drugs, Psychotropic Substances, and Precursors Subject to Control in the Republic of Kazakhstan" (hereinafter referred to as the List), approved by Resolution No. 470 of the Government of the Republic of Kazakhstan dated July 3, 2019 (hereinafter referred to as the Resolution Government).
When determining the size of narcotic drugs, psychotropic substances, and their analogues, it is necessary to proceed from the Summary Table on the Classification of Narcotic Drugs, Psychotropic Substances, their Analogues, and Precursors found in Illicit Trafficking to Small, Large, and Especially Large Sizes (hereinafter referred to as the Summary Table), approved by Government Decree.
Illegal trafficking of narcotic drugs, psychotropic substances, their analogues and toxic substances, which entails criminal liability, should be understood as their non-medical consumption in public places, manufacture, processing, acquisition, storage, transportation, shipment and sale, committed in violation of the legislation of the Republic of Kazakhstan.
The footnote. Paragraph 1 is amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication). 1-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
Illegal acquisition of narcotic drugs, psychotropic substances, their analogues, tools or equipment used for their manufacture or processing, as well as precursors, should be considered the purchase, receipt in exchange for other goods and things, in payment of debt, loan or gift, appropriation of found, collection of wild narcotic plants or their parts, remnants unprotected crops of such plants after their harvesting, etc. <*>
The footnote. Paragraph 2 was amended by Resolution No. 19 of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000.
2-1. Illegal transportation of narcotic drugs, psychotropic substances, and their analogues is recognized as any action to move them within the Republic of Kazakhstan, including within the same locality, regardless of the method of transportation and storage, committed in violation of the legislation of the Republic of Kazakhstan.
Transportation can be carried out either by a person who illegally manages narcotic drugs or psychotropic substances, their analogues, or by other persons on his behalf. The person who instructed others to carry out the transportation of the specified means and substances, their analogues, is responsible for the organization of transportation, and in the case of transportation through persons who, in accordance with criminal law, are not subject to criminal liability (for example, insane persons who have not reached the age from which criminal liability begins, or are not aware of the nature of the cargo), - as the perpetrator of a criminal offense.
Transportation of narcotic drugs and psychotropic substances and their analogues should be considered completed at the time of their transportation.
Possession by a person during a trip of narcotic drugs, psychotropic substances, or their analogues in small quantities intended for personal use cannot be qualified as illegal transportation.
The very fact that a person is transporting narcotic drugs or psychotropic substances, or their analogues in large quantities, may indicate that he has intent on their sale, transportation for the purpose of sale, or complicity in these acts.
According to subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated July 10, 1998 No. 279 "On Narcotic Drugs, Psychotropic Substances, their analogues and precursors and measures to counteract their illicit trafficking and abuse", the import and export of narcotic drugs, psychotropic substances and precursors is understood as their movement from one State to another State.
The footnote. The Resolution was supplemented by paragraph 2-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 7; as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 No. 1 (effective from the date of official publication); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication).
Illegal storage should be understood as any intentional actions related to the actual possession of narcotic drugs, psychotropic substances, their analogues, tools or equipment used for their manufacture or processing, as well as precursors, regardless of the location (with oneself, in a hiding place, a room, a vehicle and other places) without appropriate permission.) and their storage time.
When deciding on the existence of intent for illegal storage for the purpose of sale, it is necessary to proceed from the totality of evidence that these drugs or substances, their analogues are actually prepared for sale (for example, the discovery of these drugs and substances, their analogues in large quantities, excluding only their personal use, packaging for doses, the presence of tools or equipment for their manufacture or packaging, establishing the fact that the perpetrator himself does not use drugs, etc.).
The footnote. Paragraph 3 was amended by Resolution No. 19 of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000.
3-1. Illegal manufacture, processing, purchase, transportation or storage of narcotic drugs or psychotropic substances, their analogues should be qualified:
according to the second part of Article 296 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), if they are committed without the purpose of selling narcotic drugs or psychotropic substances, their analogues in an amount not exceeding a large;
according to the first part of Article 297 of the Criminal Code, if they are committed for the purpose of selling narcotic drugs or psychotropic substances, their analogues in an amount not exceeding a large;
according to the second part of Article 297 of the Criminal Code, if they are committed for the purpose of selling narcotic drugs or psychotropic substances, their analogues on a large scale.;
according to the third part of Article 297 of the Criminal Code, if they are committed for the purpose of selling narcotic drugs or psychotropic substances, their analogues on a particularly large scale, as well as if they are committed for the purpose of selling narcotic drugs or psychotropic substances, their analogues by a group of persons by prior agreement, repeatedly, by an official using official regulations, through the use of electronic information resources or in a public place;
according to the fourth part of Article 297 of the Criminal Code, if they are committed for the purpose of selling narcotic drugs or psychotropic substances, their analogues by a criminal group.
When a person commits two acts, one of which is subject to qualification 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, there is no sign of repetition. These acts are classified according to the totality of criminal offenses.
The footnote. The Resolution was supplemented by paragraph 3-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 7; as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 22.12.2022 No. 10 (effective from the date of the first official publication).
Illegal manufacture should be recognized as any intentional actions that resulted in the production of narcotic drugs, psychotropic substances, their analogues or precursors, or the conversion of one narcotic drug, psychotropic substance, their analog, precursor, respectively, into others included in the List. Changing the shape of the same type of narcotic drug or psychotropic substance, their analogues (grinding, pressing into tablets, pills, tiles, pastes, etc.) is not considered manufacturing.
4-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
Tools or equipment used for the manufacture or processing of narcotic drugs or psychotropic substances, their analogues, should be understood as items or devices manufactured for these purposes by artisanal or industrial methods (except household items).
The footnote. Paragraph 5 was amended by Resolution No. 19 of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000.
Illegal processing means remaking or refining (purification from foreign impurities) without the appropriate permission of the same type of narcotic drug or psychotropic substance, their analogues in order to increase its concentration. Drying, crushing, separation of certain parts and other modification of the same type of narcotic plant is not illegal processing (except in cases of obtaining another narcotic drug from it).
6-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
The illegal transfer of narcotic drugs or psychotropic substances, their analogues, should be understood as their sending by any kind of communication, by express, as well as using animals and birds.
The shipment should be considered completed at the time of registration of the shipment, i.e. baggage delivery to an official representative of communications companies or transport organizations, or to the person through whom the shipment is carried out.
Illegal transfer of narcotic drugs, psychotropic substances, and their analogues from abroad is subject to additional qualification under Article 286 of the Criminal Code.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication). 7-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
Explain to the courts that, according to paragraph 2 of the third part of Article 297 of the Criminal Code, on the basis of repetition, the actions of a person who illegally acquired, transported or stored for the purpose of sale, or manufactured, processed, sent narcotic drugs, psychotropic substances, their analogues for the purpose of sale or without it, or sold them if he had previously committed one or several of these socially dangerous acts and have not been convicted for it. A criminal offense is not recognized as having been committed repeatedly if a person has been released from criminal liability in accordance with the procedure established by law for a previously committed criminal offense, or the statute of limitations for bringing such a criminal offense to criminal responsibility has expired.
The sale of narcotic drugs, psychotropic substances, and their analogues by one person to several buyers, or two or more times to the same buyer, including after a short period of time, may qualify as repeated sale of narcotic drugs or psychotropic substances, their analogues, if it is established that each sale was carried out by the perpetrator in accordance with an independent intent to commit each fact of sale.
The footnote. Paragraph 8 as amended by Resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/22/2000 N 19; dated 07/11/2003 N 7; dated 04/21/2011 N 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
Illegal sale should be understood as any means of illegal sale or transfer of narcotic drugs, psychotropic substances, their analogues, precursors from the possession of one person to the possession of others (sale, donation, payment of debt, in exchange, loan, injection to another person, including contactless, using "bookmarks", the Internet resources and electronic wallets, etc.).
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
9-1. The sale or transfer of narcotic drugs or psychotropic substances, their analogues should be qualified:
according to the first part of Article 297 of the Criminal Code, if it is committed in relation to narcotic drugs or psychotropic substances, their analogues in the amount of less than a large;
according to the second part of Article 297 of the Criminal Code, if it is committed in relation to narcotic drugs or psychotropic substances, their analogues on a large scale;
according to the third part of Article 297 of the Criminal Code, if it is committed in relation to narcotic drugs or psychotropic substances, their analogues on a particularly large scale, as well as if it is committed repeatedly, or by a group of persons by prior agreement, by an official using his official position, through the use of electronic information resources or in a public place.;
according to the fourth part of Article 297 of the Criminal Code, if the transfer or sale was committed in relation to narcotic drugs or psychotropic substances, their analogues by a criminal group, or if their sale was committed in educational organizations or knowingly to a minor.
In cases where the guilty person, having misled the buyer, sells other substances or their analogues under the guise of narcotic drugs or psychotropic substances, his actions should be qualified as fraud.
The actions of a person who has committed the purchase of such substances or their analogues under the influence of deception should be qualified as an attempt to purchase narcotic drugs or psychotropic substances or their analogues.
The actions of an intermediary in the sale or acquisition of narcotic drugs or psychotropic substances, their analogues should be qualified as complicity in the sale or acquisition of narcotic drugs or psychotropic substances, their analogues, depending on in whose interests (the seller or the buyer) the intermediary acts. If the intermediary acts in the interests of both the buyer and the seller, then he is responsible for complicity in the sale.
If a person, at the request of the actual owner of narcotic drugs or psychotropic substances, their analogues, is directly involved in their sale, then his actions are subject to qualification as co-fulfillment in the sale.
The injection of a narcotic drug or psychotropic substance or their analogues by one person to another person at his request cannot be qualified as illegal sale if the specified drug or substance is their analog, belongs to the consumer himself.
The footnote. The Resolution was supplemented by paragraph 9-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 7; as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication).
9-2. When committing several crimes provided for in various parts of Articles 296, 297 of the Criminal Code, these acts are generally qualified only according to that part of the specified article, which provides for a more severe punishment and covers the signs of each criminal offense. At the same time, the qualifying criteria established in relation to the acts specified in other parts of this article of the criminal law must be charged and indicated in the verdict.
The footnote. The Resolution was supplemented by paragraph 9-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication).
9-3. The actions of a person resulting in the illegal manufacture, processing, acquisition, transportation or storage for the sale of narcotic drugs on a large scale and repeated sale of a part of it are subject to qualification under paragraph 2 of part three of Article 297 of the Criminal Code, and in case of a single sale of a part of it - under part two of Article 297 of the Criminal Code.
The actions of a person, expressed in the illegal manufacture, processing, acquisition, transportation or storage for the sale of narcotic drugs on an especially large scale and a single sale of its part, are subject to qualification under paragraph 3 of the third part of Article 297 of the Criminal Code.
The actions of a person, expressed in the illegal manufacture, processing, acquisition, transportation or storage for the sale of narcotic drugs on an especially large scale and repeated sale of a part of it, are subject to qualification under paragraphs 2 and 3 of the third part of Article 297 of the Criminal Code.
At the same time, the signs of all the acts committed by the perpetrator, that is, the illegal manufacture, processing, acquisition, transportation or storage for the sale of narcotic drugs, as well as the shipment and sale of narcotic drugs, must be charged and indicated in the verdict.
The footnote. The Resolution was supplemented by paragraph 9-3 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
9-4. The courts should bear in mind that, in accordance with the provisions of the Law of the Republic of Kazakhstan dated September 15, 1994 No. 154-XIII "On operational search activities", the operational purchase of narcotic drugs or psychotropic substances, their analogues and other operational search activities are carried out only if there are grounds provided by law for their conduct, with the knowledge and under the control of the body carrying out operational investigative activities in accordance with the tasks assigned to it and within its competence. When carrying out operational search activities, it is prohibited to incite and provoke citizens to commit offenses.
Participation in an operational search event as witnesses of persons interested in the case or dependent on the criminal prosecution authorities or unable to fully and correctly perceive the actions taking place in their presence, as well as minors, entails the recognition by the court of the results of the operational search event as unacceptable as evidence of factual data.
It is necessary to exclude bringing a person to criminal responsibility for certain charges that are not registered in accordance with the procedure established by law in the Unified Register of Pre-Trial Investigations.
It is not allowed to carry out repeated operational search measures for the purchase of narcotic drugs from the same suspect with the involvement of the same person imitating criminal activity, if the first fact of sale is confirmed and the purpose of the operational search activity is fully achieved. Additional operational search measures may be carried out against this suspect only in order to identify the sources of his purchase of narcotic drugs, a criminal group or other purposes of the criminal process with the issuance of an appropriate reasoned decision.
The footnote. The Resolution was supplemented by paragraph 9-4 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
9-5. In urgent cases, searches, seizures, inspections of residential premises and other investigative actions subject to the authorization of an investigating judge must be carried out in exceptional circumstances strictly in accordance with the requirements of the CPC.
Exceptional circumstances giving grounds for urgent investigative actions are cases when the conduct of investigative actions in accordance with the general procedure established by the CPC may lead to serious irreversible consequences for human life and health, or there is a real fear that the wanted person may escape, destroy traces of the crime and (or) the object to be seized may be due to the delay in its detection, it is lost, damaged or used for criminal purposes, etc.
The footnote. The regulatory resolution was supplemented by paragraph 9-5 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The public place specified in paragraph 6) of the third part of Article 297 of the Criminal Code should be understood as the places specified in the Rules for Receiving and Registering applications, reports or reports on criminal offenses, as well as maintaining a Unified Register of Pre-Trial Investigations, approved by Order of the Prosecutor General of the Republic of Kazakhstan dated September 19, 2014 No. 89, registered with the Ministry of Justice Republic of Kazakhstan on September 23, 2014 No. 9744.
In accordance with the requirements of Article 113 of the CPC, the fact of committing acts in a public place must be proved by establishing the time, place, method and other circumstances of its commission. The publicity of committing crimes in a public place is a mandatory feature in the qualification of an act under paragraph 6) of the third part 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 four of Article 297 of the Criminal Code and does not require additional qualifications under paragraph 6) of part three of Article 297 of the Criminal Code. When defining the concept of 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 No. 319-III "On Education".
The footnote. Paragraph 10 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In order to establish the specific type, name, size, weight and volume of narcotic drugs, psychotropic, potent, poisonous substances, their analogues, precursors, as well as to establish the suitability of substances, their analogues, tools or equipment used for their manufacture, an expert examination is necessary.
The small, large and especially large sizes of these substances, their analogues or preparations should be determined in accordance with the Summary Table on the Classification of Narcotic Drugs, Psychotropic Substances, their analogues and Precursors to small, large and especially large sizes found in illicit trafficking, which entered into force on August 8, 2002.
At the same time, it should be borne in mind that if, in accordance with the newly approved List and Summary Tables, responsibility or punishment is mitigated or the situation of the person who committed a criminal offense is otherwise improved, then these provisions are retroactive.
Due to the fact that the Summary Table defines separately the size and type of each narcotic substance, their analogues or psychotropic substances, if a person is detained with different narcotic drugs or psychotropic substances, their analogues, then when qualifying the actions of the perpetrator, summation of the total weight of different narcotic drugs or psychotropic substances, their analogues is not allowed.
When determining the size and weight of narcotic drugs and psychotropic substances, their analogues consisting of plucked cannabis and opium poppy plants, it is necessary to separate the parts that do not contain narcotic substances, their analogues (soil, rhizomes, etc.).
When qualifying illicit trafficking in narcotic drugs, psychotropic substances, and their analogues, it is necessary to proceed from the sizes established by the Summary Table. At the same time, the amount of narcotic drugs, psychotropic substances, and their analogues is determined for each type separately and cannot be summed up. In cases where the Summary Table establishes the types of narcotic drugs with accompanying substances and fillers (for example, heroin, including accompanying substances and fillers, codeine with salts, codeine dosage form, methadone with salts, morphine with salts, opium with neutral fillers (flour, sugar, starch, etc.), cocaine with salts, including concomitant substances, MDMA, MBDB with salts, ephedrone with concomitant substances, etc.), it is necessary to proceed from the weight of narcotic drugs together with fillers.
When deciding on responsibility for the organization and maintenance of dens for intoxication under Article 310 of the Criminal Code, it is necessary to appoint an appropriate examination to determine whether the drugs or other drugs and substances used, their analogues that are not narcotic or psychotropic, have an intoxicating effect on people when consumed. <*>
The footnote. Item 11 as amended by Resolutions of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 2; dated 12/22/2000 No. 19; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 7; dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
To clarify that for the onset of liability under the first part of Article 303 of the Criminal Code, the very fact of violation of the rules for handling narcotic drugs, psychotropic substances, toxic substances, and their analogues is sufficient, which, if necessary, must be established by conducting an appropriate examination. For the qualification of an act under the second part of this article, a necessary condition is the consequence of a violation of these rules - the onset of serious consequences or the theft of narcotic drugs, psychotropic substances, toxic substances, and their analogues. Negligent infliction of death or serious harm to human health should be additionally qualified under the relevant articles of the Criminal Code.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
In cases where a violation of the rules for handling narcotic drugs, psychotropic substances, poisonous substances, and their analogues was committed for the purpose of their subsequent theft or is associated with their theft, the act should be qualified collectively under part two of Article 303 and the corresponding part of Article 298 of the Criminal Code.
Persons who violate the rules for handling narcotic drugs, psychotropic substances, toxic substances, and their analogues, along with committing criminal offenses against the interests of the service (taking bribes, abuse of official authority, receiving illegal remuneration, etc.), are liable for a combination of criminal offenses provided for in Article 303 and other articles of the Criminal Code, establishing responsibility for these criminal offenses. offenses.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The subjects of criminal offenses provided for in paragraph 3 of the second part of Article 298, paragraph 1 of the third part of Article 301 and Article 303 of the Criminal Code are both officials and non-officials who, by virtue of their official duties, had access to narcotic drugs, psychotropic or poisonous substances, their analogues, tools or equipment used for their manufacture or processing., or the persons to whom they were issued for official use or placed under protection. <*>
The footnote. Paragraph 14 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 12/22/2000 No. 19; as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication).
Inducement to use narcotic drugs or psychotropic substances, their analogues, should be understood as any deliberate actions aimed at arousing other people's desire for their use (persuasion, suggestions, giving advice, misleading, deception, threats, etc.). A criminal offense is terminated from the moment of influencing a person in order to induce him to use narcotic drugs or psychotropic substances, their analogues, regardless of whether the person being persuaded used them or the use did not take place due to any reasons (refusal of the person being persuaded to use, interference by other persons, etc.). responsibility does not matter whether the person previously used narcotic drugs or psychotropic substances, or their analogues.
The actions of the perpetrator aimed at arousing the desire to consume narcotic drugs or psychotropic substances, their analogues, committed at different times against different persons or the same person, should be qualified under paragraph 2 of the second part of Article 299 of the Criminal Code, and the same actions committed simultaneously against two or more persons - under paragraph 1. parts of the third mentioned article.
Inducement to use narcotic drugs or psychotropic substances, their analogues, resulting in the death of the victim or other serious consequences due to negligence, does not require additional qualifications under other articles of the Criminal Code providing for liability for criminal offenses against the person. Other grave consequences provided for in the fourth part of Article 299 of the Criminal Code may include reckless infliction of serious harm to the victim's health, drug addiction, suicide of the victim or an attempt on his life, mental illness or exacerbation of the latter, HIV infection, etc.
If, while inciting to the consumption of narcotic drugs or psychotropic substances, their analogues, the perpetrator intentionally caused serious harm to the victim's health, then these actions should be qualified under paragraph 2 of the third part of Article 299 and the corresponding part of Article 106 of the Criminal Code.
When inciting a minor to consume narcotic drugs or psychotropic substances or their analogues, the subject of criminal offenses provided for in paragraph 1 of part three of Article 299 of the Criminal Code may only be an adult.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
A brothel may be recognized as a residential or non-residential premises adapted and provided for the consumption of narcotic drugs or psychotropic substances, their analogues.
The organization of a brothel should be understood as actions aimed at its creation (search, hire, adaptation of premises and its equipment, etc.), and if there is a room, attracting persons willing to use it for the consumption of narcotic drugs or psychotropic substances, their analogues, etc.
The maintenance of a brothel means a system of actions aimed at ensuring the functioning of a brothel (its material support, security, repair, customer service, obtaining funds and substances, their analogues for consumption, etc.).
If the organization and maintenance of a brothel involve illicit trafficking in narcotic drugs or psychotropic substances, their analogues, or inducement to consume them, these actions must be qualified in accordance with the totality of the relevant part of article 302 and other articles of the Criminal Code providing for responsibility for their commission.
In relation to Article 302 of the Criminal Code, the provision of premises for the same purposes is understood to mean the provision of premises for the organization or maintenance of a brothel.
The actions of a person, expressed in a single provision of premises for the joint use of narcotic drugs, do not constitute a criminal offense provided for in Article 302 of the Criminal Code, since for qualification under this article it is necessary that the guilty person organize or maintain housing or non-residential premises as a den for the systematic use of narcotic drugs or transfer them to other persons for the organization and the contents of the brothel.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The sowing of plants prohibited for cultivation, containing narcotic substances, their analogues, should be understood as sowing seeds or planting seedlings of plants listed in the List without proper permission on any land plots, and cultivation should be understood as caring for crops and seedlings in order to bring them to the stage of maturation.
Cultivation is recognized as the breeding of narcotic plants carried out without proper permission and control, i.e. actions aimed at breeding new varieties of them, as well as improving the process of their cultivation.
17-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The grounds for exemption from criminal liability are indicated in the note to Article 296 of the Criminal Code, the list is exhaustive. Voluntary surrender of narcotic drugs or psychotropic substances or their analogues means that a person issues these drugs or substances or their analogues to government officials if there is a real opportunity to dispose of them in another way. Active promotion of the disclosure or suppression of criminal offenses related to the illicit trafficking of narcotic drugs or psychotropic substances, their analogues, involves the personal voluntary participation of the subject in the activities of the bodies performing the functions of criminal prosecution aimed at the disclosure or suppression of this criminal offense, the establishment of the factual circumstances of the case, the persons involved in the commission of the act, the location of the latter and their detention, search for narcotic drugs or psychotropic substances, their analogues, etc.
If a person suspected of committing illegal acts voluntarily gave out narcotic drugs that could be found before starting a personal search, a search of a home or other premises conducted for the purpose of detecting narcotic drugs or other objects, then this is not a voluntary extradition provided for in paragraph 2 of the Notes to Article 296 of the Criminal Code. If, during a search in one place, a person stated that he had narcotic drugs for personal use that were stored in another place (at the cottage, in the garden, at a neighbor's, etc.), the discovery of which would have been impossible without his indication, then these actions are recognized as voluntary extradition and the person in accordance with paragraph 2 of the Notes Article 296 of the Criminal Code exempts from criminal liability under this article.
Voluntary medical treatment in connection with the use of narcotic drugs as a basis for exemption from criminal liability may take place only until the fact of an offense is revealed by the criminal prosecution body."
The footnote. Paragraph 18, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
When considering cases related to the illicit trafficking of narcotic drugs or psychotropic substances, their analogues, if necessary, a forensic narcological examination should be appointed to clarify the question of the presence or absence of grounds for applying compulsory treatment for drug addiction or substance abuse to the accused. In accordance with article 91 of the Criminal Code, courts need to discuss the issue of applying compulsory treatment to persons who are recognized as needing treatment for drug addiction or substance abuse.
The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
19-1. The courts must thoroughly and comprehensively verify the statements of the defendants about illegal investigative methods. At the same time, special attention should be paid to the observance by the criminal prosecution authorities of the requirements of the criminal procedure legislation regulating the procedure for conducting operational search and investigative actions in order to identify inadmissible evidence, including their falsification.
If the arguments of the application are confirmed, the evidence obtained in this way is subject to exclusion. <*>
The footnote. Amended by paragraph 19-1 - Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 7.
The fate of physical evidence in cases of this category should be resolved in accordance with paragraph 2 of the third part of Article 118 of the CPC.
Vehicles that are used for transportation or as a place of illegal storage of narcotic drugs must be classified as an instrument or means of committing a criminal offense and recognized as material evidence.
Premises may also be recognized as a means of committing a criminal offense if they were used for the illegal storage of narcotic drugs.
In such cases, the specified material evidence – tools or means of committing a criminal offense (vehicles, premises, etc.) - is subject to confiscation by the court to the state revenue in accordance with the requirements of part three of Article 118 of the CPC on the basis of Article 48 of the Criminal Code.
The footnote. Paragraph 20 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Courts should pay attention to the causes and conditions that contributed to the commission of criminal offenses, as well as find out whether during the preliminary investigation the measures provided for by law were taken to identify the sources of acquisition or distribution of narcotic drugs or psychotropic and poisonous substances, their analogues, to clarify the sources and ways of legalizing funds or property obtained as a result of illicit trafficking in narcotic drugs. drugs or psychotropic substances, their analogues, and if there are grounds, in accordance with Article 405 of the CPC, to make private decisions. <*>
The footnote. Paragraph 21 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 7; dated 31.03.2017 No. 3 (effective from the date of the first official publication).
In connection with the adoption of this resolution, to invalidate the decisions of the Plenum of the Supreme Court of the Kazakh SSR:
No. 16 of October 10, 1986 "On Judicial Practice in Cases Related to the Application of Legislation to combat drug addiction" as amended by Resolution No. 2 of the Plenum of March 25, 1988;
No. 2 dated March 25, 1988 "On Amendments to the Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated October 10, 1986 No. 16 "On Judicial Practice in Cases Related to the Application of Legislation to combat drug addiction";
No. 2 dated April 05, 1991 "On the implementation by the courts of the Dzhambul region of legislation on liability for illegal actions with narcotic drugs",
to invalidate Resolution No. 12 of the Plenum of the Supreme Court of the USSR dated December 24, 1987 "On judicial practice in cases of theft of narcotic drugs, as well as illegal manufacture, distribution and other illegal actions related to narcotic drugs, potent and poisonous substances, and their analogues."
The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
This resolution comes into force from the moment of its publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Secretary of the Plenum,
Judge of the Supreme Court
Republic of Kazakhstan
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