Commentary on Article 300. Illegal Cultivation of Plants Prohibited for Cultivation Containing Narcotic Substances of the Criminal Code of the Republic of Kazakhstan
1. Sowing or growing plants prohibited for cultivation, or cultivating varieties of hemp, poppy or other plants containing narcotic substances —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or engagement in community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.
2. The same act committed:
- by a group of persons by prior conspiracy;
- repeatedly;
- on a large scale, —
shall be punishable by deprivation of liberty for a period of three to eight years.
The public danger of the crime lies in the fact that the illegal cultivation of plants prohibited for cultivation and containing narcotic substances is almost always associated with the sale of the resulting harvest, i.e., the distribution of narcotic drugs.
The object of the crime is public health.
The subject matter of the crime consists of plants prohibited for cultivation or varieties of hemp, poppy or other plants containing narcotic drugs. The question of whether plants or varieties of hemp, poppy or other plants are classified as prohibited for cultivation, and whether these plants contain narcotic drugs, psychotropic substances and precursors, is resolved by conducting a forensic examination.
According to Article 22 of the Law of the Republic of Kazakhstan dated July 10, 1998, “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counteract Their Illicit Trafficking and Abuse,” the cultivation and collection of plants containing narcotic drugs, psychotropic substances and precursors, as well as their use for industrial, medical, educational and scientific purposes, are permitted for legal entities holding licenses for this type of activity, in quantities not exceeding the state quotas established by the Government of the Republic of Kazakhstan (paragraph 1).
In accordance with Article 10 of the Law of the Republic of Kazakhstan dated May 16, 2014, “On Permits and Notifications,” on December 9, 2014, the Government of the Republic of Kazakhstan adopted the Resolution “On Certain Issues of Licensing Activities Related to the Circulation of Narcotic Drugs, Psychotropic Substances and Precursors,” which determined:
the Ministry of Internal Affairs of the Republic of Kazakhstan as the licensing authority for carrying out activities related to the circulation of narcotic drugs, psychotropic substances and precursors;
the authorized body in the field of healthcare as the licensing authority for carrying out activities related to the circulation of narcotic drugs, psychotropic substances and precursors within the healthcare system.
The cultivation and collection of opium poppy, the coca bush and cannabis (hemp) for the purpose of manufacturing narcotic medicinal products within the territory of the Republic of Kazakhstan are prohibited, except for the cases provided for by Article 18 of the Law of the Republic of Kazakhstan “On Narcotic Drugs, Psychotropic Substances, Their Analogues and Precursors and Measures to Counteract Their Illicit Trafficking and Abuse” (paragraph 2), which states that the use of narcotic drugs, psychotropic substances, their analogues and precursors for scientific and educational purposes is permitted for legal entities that have obtained a license for activities involving the use of narcotic drugs, psychotropic substances, their analogues and precursors, in quantities precisely specified in that license.
The decision to prohibit the cultivation and collection of other plants containing narcotic drugs, psychotropic substances and precursors within the territory of the Republic of Kazakhstan is adopted by the Government of the Republic of Kazakhstan (paragraph 3).
Plants containing narcotic substances are specified in Appendix 1 to the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated July 3, 2019.
The objective element is expressed in the commission of alternative acts:
sowing plants containing narcotic substances that are prohibited for cultivation;
growing such plants;
cultivating varieties of hemp, poppy or other plants containing narcotic substances.
According to paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998, sowing plants containing narcotic substances that are prohibited for cultivation should be understood as sowing or planting seedlings of the plants specified in the List, without obtaining the proper authorization, on any land plots; growing means caring for crops and seedlings with the aim of bringing them to the stage of maturity.
Sowing or growing plants prohibited for cultivation, cultivating varieties of hemp, poppy or other plants containing narcotic substances, and the illegal manufacture (extraction) of narcotic drugs from them, their subsequent storage and transportation without the purpose of sale, as well as their dispatch, illegal production or sale, should be classified cumulatively under the criminal offenses provided for by Article 300 of the Criminal Code and, accordingly, Articles 296 or 297 of the Criminal Code.
Cultivation is recognized as the selection of plants containing narcotic substances carried out without proper authorization and control, i.e., actions aimed at developing new varieties of such plants, as well as improving the process of their cultivation.
According to subparagraph 21) of Article 1 of the Law of the Republic of Kazakhstan dated July 10, 1998, the cultivation of plants containing narcotic substances means the sowing and growing of opium poppy and hemp (cannabis), as well as other plants containing narcotic substances included in the List of Narcotic Drugs, Psychotropic Substances and Precursors Subject to Control in the Republic of Kazakhstan in accordance with international conventions.
The crime is deemed completed when the fact of sowing, growing or cultivating the specified plants and crops without the permission of the authorized bodies has occurred, regardless of whether the plants and crops subsequently germinate or grow. In this regard, the place of sowing, the size of the sown area and the fate of the crops are irrelevant.
The subject of the crime is a physically sane individual who has reached the age of 16.
The subjective element is characterized exclusively by direct intent: the perpetrator is aware that they are illegally sowing, growing or cultivating plants prohibited for cultivation, or varieties of hemp, poppy and other plants containing narcotic substances, and desires to do so.
The purpose is not specified in the disposition of the commented article. However, it should be taken into account that Article 300 of the Criminal Code is included in the chapter “Crimes Against Public Health and Morality.” Consequently, if a person's act does not cause and is not capable of causing harm to the object of criminal-law protection, there are no grounds to speak of the presence of the elements of a crime. For example, growing poppy for use in cooking.
Part 2 of Article 300 of the Criminal Code provides for the following qualifying elements:
by a group of persons by prior conspiracy;
repeatedly;
on a large scale.
The content of the elements “by a group of persons by prior conspiracy” or “repeatedly” is disclosed in the commentary to Part 3 of Article 297 of the Criminal Code.
When deciding whether this crime was committed on a large scale, it is necessary to be guided by Table IV, “Amounts of Illegal Cultivation of Plants Classified as Narcotic Drugs, Psychotropic Substances and Precursors,” of Appendix 2, “Consolidated Table on the Classification of Narcotic Drugs, Psychotropic Substances and Precursors into Small, Large and Particularly Large Amounts Detected in Illicit Trafficking,” to the Law of the Republic of Kazakhstan “On Narcotic Drugs, Psychotropic Substances, Precursors and Measures to Counteract Their Illicit Trafficking and Abuse.”
In the event of the commission of an act provided for by subparagraph 3) of Part 2 of Article 300 of the Criminal Code, guilt may be expressed in the form of either direct or indirect intent with respect to the acts committed specifically involving large quantities of the specified plants.
The act provided for by Part 1 of Article 300 of the Criminal Code is classified as a minor criminal offense.
The act provided for by Part 2 of Article 300 of the Criminal Code is classified as a serious crime.
Note: Spelling errors, typographical errors and obvious text recognition errors have been corrected. The content of the legal provisions, the currency of references to legislation and the legal accuracy of the original text have not been verified.
Commentary of 2021 on 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 the 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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