Commentary on Article 301. Illegal Trafficking in Poisonous Substances, as Well as Substances, Instruments or Equipment Used for the Manufacture or Processing of Narcotic Drugs, Psychotropic Substances, Their Analogues or Poisonous Substances of the Criminal Code of the Republic of Kazakhstan
1. Illegal manufacture, processing, acquisition, storage, transportation, shipment for the purpose of sale, as well as illegal sale of poisonous substances that are not narcotic drugs, psychotropic substances or their analogues, or instruments or equipment for their manufacture or processing, —
shall be punishable by imprisonment for a term of up to five years.
2. Illegal manufacture, acquisition, storage, transportation, shipment for the purpose of sale, as well as illegal sale of substances, their analogues, instruments or equipment used for the manufacture or processing of narcotic drugs or psychotropic substances, —
shall be punishable by imprisonment for a term of three to seven years.
3. The acts provided for in Parts One or Two of this Article, committed:
1) by a person using their official position;
2) by a group of persons acting in prior conspiracy;
3) repeatedly;
4) through electronic information resources, —
shall be punishable by imprisonment for a term of seven to ten years.
4. The acts provided for in Parts One or Two of this Article, committed by a criminal group, —
shall be punishable by imprisonment for a term of ten to fifteen years.
The public danger of the crime lies in the violation of the legally established procedure for the circulation of poisonous substances, as well as the use of substances, instruments or equipment for the distribution of narcotic drugs, psychotropic substances, their analogues or poisonous substances.
The object of the crime is public health.
The subject matter of the crime consists of poisonous substances that are not narcotic drugs or psychotropic substances, as well as instruments or equipment used for the manufacture or processing of poisonous substances. The subject matter of the crime for which liability is provided for in Part 2 of the Article under consideration consists of substances, instruments or equipment used for the manufacture or processing of narcotic drugs, psychotropic substances and their analogues. The question of whether the substances, instruments or equipment discovered in circulation fall within those specified in the disposition of the Article shall be resolved through a forensic examination.
According to Subparagraph 283) of Paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” sanitary and epidemiological well-being of the population is the state of public health and the living environment in which there is no harmful impact of environmental factors on humans and favourable conditions for their vital activity are ensured.
Activities in the field of sanitary and epidemiological well-being of the population are activities of state bodies and organizations in the field of sanitary and epidemiological well-being of the population aimed at protecting the health of citizens of the Republic of Kazakhstan, including state control and supervision in the field of sanitary and epidemiological well-being of the population, sanitary and epidemiological monitoring, sanitary and epidemiological standardization, state registration of products, sanitary and epidemiological examination, hygienic training, sanitary and epidemiological auditing, disinfection, disinsection and deratization, and assessment of the degree of risks in the field of sanitary and epidemiological well-being of the population (Subparagraph 284) of Paragraph 1 of Article 1 of the Code).
By Order of the Minister of Healthcare of the Republic of Kazakhstan dated September 8, 2017, the Sanitary Rules “Sanitary and Epidemiological Requirements for Laboratories Using Potentially Hazardous Chemical and Biological Substances” were approved. These Rules establish sanitary and epidemiological requirements for the selection of land plots for the construction of facilities, design, operation, reconstruction, repair, water supply, wastewater disposal, heat supply, lighting, ventilation, air conditioning and working conditions in microbiological, sanitary-hygienic and radiological laboratories, as well as the storage and transportation of materials (microorganisms).
According to Paragraph 133 of these Rules, work with poisonous substances (organic and mineral acids, oxygen, nitrogen, halogen-containing compounds, compounds of arsenic, phosphorus and other poisonous metals and non-metals) shall be carried out by trained personnel in compliance with precautionary measures.
Poisonous substances used in the laboratory shall be stored in a specially designated place, in a cabinet or iron box secured with a lock and seal. Containers holding poisonous substances shall have clear and brightly coloured labels indicating the name of the substance (Paragraph 134).
Containers containing flammable and explosive substances, as well as containers containing poisonous substances, shall be stored in working premises in quantities necessary for work during the working day (Paragraph 135).
Poisonous substances have a toxic effect on the human body. According to medical criteria, poisonous substances are those which, when consumed (taken orally, applied externally, or administered subcutaneously, intravenously or intramuscularly), even in small doses, may cause severe poisoning or death of a person.
Poisonous substances are included in Tables 1–2 of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Poisonous substances include both medicinal substances and synthetic and natural substances not authorized for use as medicinal products. In particular, these include arsenic trioxide, acetic anhydride, purified bee venom, mercury, strychnine, potassium cyanide, sulfuric acid, etc.
The objective side of the crime consists of the illegal manufacture, processing, acquisition, storage, transportation, shipment for the purpose of sale, as well as illegal sale of poisonous substances that are not narcotic drugs or psychotropic substances, or instruments or equipment for their manufacture or processing.
Illegal manufacture means any intentional actions resulting in the production of poisonous substances, as well as instruments or equipment for their manufacture or processing, or actions resulting in the transformation of one poisonous substance into another. Changing the form of the same type of poisonous substance (grinding, pressing, etc.) does not constitute manufacture.
By its legal structure, this crime is a formal offence, meaning that it shall be considered completed from the moment at least a portion of a finished poisonous substance is obtained in a concentration at which its consumption may have a toxic effect on the body, or from the moment instruments or equipment for its manufacture or processing are obtained.
Illegal processing means the conversion or refining (purification from foreign impurities) of the same type of poisonous substance without the appropriate authorization, for the purpose of increasing its concentration. At the same time, drying, grinding, separating certain parts and other modification of the same type of poisonous substance do not constitute illegal processing, except in cases where another poisonous substance is obtained from it.
Illegal processing shall be considered a completed offence from the moment actions aimed at processing the poisonous substance begin, or from the moment another poisonous substance is obtained from it.
Illegal acquisition of poisonous substances, instruments or equipment for their manufacture or processing shall mean obtaining them into permanent or temporary possession by any means — through purchase, exchange for other goods and items, receipt in repayment of a debt, borrowing or receiving as a gift, appropriation of found property, etc.
The theft of poisonous substances, instruments or equipment for their manufacture or processing by any means, or their extortion, does not constitute the objective side of their acquisition. Such actions shall be qualified under the Articles of the Criminal Code of the Republic of Kazakhstan providing for liability for criminal offences against property.
Illegal acquisition of poisonous substances, instruments or equipment for their manufacture or processing shall be considered completed from the moment they are transferred from one person to another.
Illegal storage shall mean any intentional actions involving the possession of poisonous substances, instruments or equipment without the appropriate authorization, regardless of the place (on one's person, in a cache, premises, vehicle or other locations) and the duration of their storage. The specified substances, instruments or equipment may be stored secretly or openly, free of charge or for a certain fee. These circumstances do not affect the qualification of the crime. Storage may be considered criminal regardless of who is the actual owner of the poisonous substances, instruments or equipment used for their manufacture or processing.
Illegal storage shall be considered a completed offence from the moment the poisonous substances, instruments or equipment for their manufacture or processing begin to be in the actual possession of the offender.
Illegal transportation of poisonous substances, instruments or equipment for their manufacture or processing shall mean any intentional actions involving their physical movement, regardless of the method of transportation and place of storage, in violation of the established procedure.
Transportation may be carried out both by the person in whose illegal possession the poisonous substances, instruments or equipment for their manufacture or processing are located, and by other persons acting on their instructions. A person who instructs another person to carry out the illegal transportation of poisonous substances, instruments or equipment shall be liable for organizing the transportation. Where transportation is carried out through persons who, under criminal law, are not subject to criminal liability (for example, persons who are legally insane, persons who have not reached the age of criminal responsibility, or persons unaware of the nature of the cargo), the person who gave the instruction shall be liable as the perpetrator of the crime. Illegal transportation of poisonous substances, instruments or equipment for their manufacture or processing shall be considered completed from the moment their transportation begins.
Illegal transportation of poisonous substances across the customs border of the Customs Union or the State Border of the Republic of Kazakhstan shall be qualified under Article 286 of the Criminal Code as smuggling of items withdrawn from circulation or items whose circulation is restricted. This qualification feature does not apply to instruments or equipment used for the manufacture or processing of poisonous substances.
Illegal shipment of poisonous substances, instruments or equipment shall mean their dispatch by any means of communication, transport, courier, as well as through the use of animals, birds or by any other method without the participation of the sender.
Shipment shall be considered a completed offence at the moment the shipment is formalized, that is, when the baggage is handed over to an official representative of a communications enterprise or transport organization, or to a person through whom the shipment is carried out.
For the purposes of qualification, it does not matter whether the addressee has received the poisonous substances, instruments or equipment sent to them. If the crime was not completed for reasons beyond the control of the offender, their actions should be qualified as attempted shipment of such items. It should be noted that criminal liability for the illegal shipment of poisonous substances arises only when the shipment is carried out within the territory of the Republic of Kazakhstan.
Illegal shipment of poisonous substances across the customs border of the Customs Union or the State Border of the Republic of Kazakhstan shall be qualified under Article 286 of the Criminal Code as smuggling of items withdrawn from circulation or items whose circulation is restricted.
As in the case of illegal transportation, this qualification feature does not apply to instruments or equipment used for the manufacture or processing of poisonous substances.
The sale of poisonous substances, instruments or equipment used for the manufacture or processing of poisonous substances shall mean any illegal method of their disposal or transfer from the possession of one person to the possession of another (sale, donation, transfer in repayment of a debt, exchange, lending, etc.).
If a person fraudulently sells a substance under the guise of poisonous substances, instruments or equipment for the purpose of taking possession of citizens' funds or property, their actions must be qualified as fraud under Article 190 of the Criminal Code, while the actions of the person who received this substance must be qualified as attempted illegal acquisition of poisonous substances, instruments or equipment used for the manufacture or processing of poisonous substances, since the crime was not completed for reasons beyond their control. The funds obtained in this manner shall be transferred to state revenue.
The sale may be carried out both by the person who manufactured the poisonous substances, instruments or equipment and by persons who had no involvement whatsoever in their manufacture.
The sale shall be considered a completed offence at the moment the poisonous substances, instruments or equipment pass from the actual possession of one person into the possession of another person or are transferred to them. It should be noted that the moment of transfer of poisonous substances, instruments or equipment may be prolonged, for example, where they are sold through an intermediary or using caches. In this case, it is possible that, at the moment the sale is completed, the person to whom the poisonous substances, instruments or equipment were sold has not yet received them.
By its legal structure, this criminal offence is a formal offence. It shall be considered completed from the moment of illegal circulation of poisonous substances, instruments or equipment used for their manufacture or processing.
The subjective side is characterized exclusively by direct intent: the person is aware that they are performing illegal actions involving poisonous substances, instruments or equipment used for the manufacture or processing of poisonous substances. At the same time, an obligatory element of the subjective side is the purpose of carrying out illegal actions involving poisonous substances, instruments or equipment — namely, their sale.
The subject of the crime is a sane individual who has reached the age of 16.
Part 2 of the Article under consideration establishes liability for the illegal manufacture, acquisition, storage, transportation, shipment for the purpose of sale, as well as illegal sale of substances, instruments or equipment used for the manufacture or processing of narcotic drugs, psychotropic substances and their analogues.
The main difference between Part 2 of Article 301 of the Criminal Code and Part 1 of the same Article lies in the subject matter of the crime. In Part 1, as previously indicated, the subject matter consists of poisonous substances that are not narcotic drugs, psychotropic substances or their analogues, as well as instruments or equipment used for the manufacture or processing of poisonous substances.
In Part 2 of Article 301 of the Criminal Code, the subject matter of the crime consists of substances, instruments or equipment used for the manufacture or processing of narcotic drugs, psychotropic substances and their analogues. At the same time, it should be borne in mind that the substances referred to in Part 2 of this Article mean substances that are not classified as narcotic drugs, psychotropic substances or their analogues subject to control in the Republic of Kazakhstan, as well as substances that are not classified as poisonous.
The main distinguishing feature of the substances, instruments or equipment specified in Part 2 of Article 301 of the Criminal Code is the possibility of using them for the manufacture or processing of narcotic drugs, psychotropic substances and their analogues. In addition, unlike Part 1, Part 2 of Article 301 of the Criminal Code does not specify such an unlawful act as processing, since it is not applicable to the subject matter of the crime under this Part.
The remaining actions provided for in Part 2 of Article 301 of the Criminal Code are analogous to the actions provided for in Part 1 of Article 301 of the Criminal Code.
Part 3 of Article 301 of the Criminal Code provides for the qualifying elements of this crime: 1) commission by a person using their official position; 2) commission by a group of persons acting in prior conspiracy; 3) repeated commission; 4) commission through electronic information resources. An analysis of these elements is provided in the commentaries to Part 2 of Article 298 of the Criminal Code and Part 3 of Article 297 of the Criminal Code.
Part 4 of Article 301 of the Criminal Code provides for a particularly qualifying element of the illegal trafficking of poisonous substances, as well as substances, instruments or equipment used for the manufacture or processing of narcotic drugs, psychotropic substances or poisonous substances, namely, the commission of the act by a criminal group. The characteristics of a criminal group are set out in the commentary to Part 4 of Article 297 of the Criminal Code.
The act provided for in Part 1 of Article 301 of the Criminal Code belongs to offences of medium gravity.
The acts provided for in Parts 2 and 3 of Article 301 of the Criminal Code belong to serious offences.
The act provided for in Part 4 of Article 301 of the Criminal Code belongs to particularly serious offences.
**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 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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